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Skaar ECPR 2011 paper

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Understanding the Impact of Transitional Justice on Peace and Democracy Elin Skaar Chr. Michelsen Institute [email protected] Paper prepared for ECPR, Reykjavik, Iceland, 25th-27th August, 2011. Section 53: “Human Rights and Transitional Justice in Post-Conflict Societies and Periods of Democratization.” Panel 342: “Politics of the Past”, Party Competition, and Democratic Consolidation. Comparing South and East.” Work in progress, 04.07.11 Please do not quote without author’s permission ABSTRACT Transitional justice mechanisms such as criminal trials, truth commissions, and reparation programs have increasingly been adopted in the aftermath of violent conflict, and are generally considered vital to peace and democracy. Yet we know relatively little about the actual impact of such strategies on the societies concerned. This paper develops a tentative analytical framework for exploring and understanding the (alleged positive) impacts of various transitional justice mechanisms on the dual processes of peacebuilding and democratization. The framework will address conceptual, methodological and measurement challenges connected to impact evaluation. Contextual factors will be given special attention. The framework proposes using mixed methods as a useful approach to better grasping complex, dynamic, and evolving social processes. It is hoped that this tentative framework will be helpful for undertaking rigid, systematic cross-country analysis to increase our understanding of how and in which ways different approaches to transitional justice – including the absence of such mechanisms – may affect the bumpy road to peace and democracy in a post-authoritarian or post-conflict situation.

http://www.ecprnet.eu/conferences/general_conference/Reykjavik/section_details.asp?sectionid=53�

http://www.ecprnet.eu/conferences/general_conference/Reykjavik/section_details.asp?sectionid=53�


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Introduction1

Historically, transitional justice mechanisms were employed after the fall of an authoritarian regime and the installation of a more democratic regime – such as after World War II and most of the post-Cold War period – to deal with past human rights violations or war crimes. However, the practice of addressing human rights violations also now include measures implemented while a country is still in conflict (e.g. possible attempts to do so in Afghanistan or the Congo) or in situations of peace making where the peace is yet not concluded (i.e. the Sudan or Colombia).

2 Recent practice of transitional justice also includes measures taken to address gross human rights violations committed in the distant past by democratic governments (i.e. truth commissions set up in Canada in 2008 to address abuses committed against its indigenous population and the Greensborough Commission set up in the US to address killings committed by the Ku Klux Klan in North Carolina in the 1970s).3

‘Dealing with the past’ has become a mantra for many countries emerging from a range of violent conflicts, including genocide, ethnic cleansing, civil war, and abuse associated with military dictatorships, one-party states, and other forms of dictatorial rule. It is widely claimed that leaving past human rights violations unattended will encourage a culture of impunity and risk renewed violence. There is a growing policy as well as academic concern with how to create stable peace after conflict and/or encourage democratisation after authoritarian rule. Over the past decade, formal mechanisms for the public accounting of wartime abuses have also become “part of the standard repertoire of international peacebuilding activities and are routinely included in negotiated peace settlements.”

Hence, what could be defined as “transitional justice” is a moving target. Not only do these brief examples raise questions with respect to what transitional justice mechanisms are. They also raise important questions with respect to the context and timing of transitional justice. All three elements have bearings on how we understand and evaluate the impact of transitional justice on larger societal goals such as peace and democracy.

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1 This paper forms part of a larger project entitled “A Way Out of Violent Conflict? The Impact of Transitional Justice Mechanisms on Peace and Democracy”, funded by the Norwegian Ministry of Foreign Affairs. The theoretical framework has been developed in collaboration with team members Camila Gianella (CMI), Trine Eide (University of Tromsø), and Natalia Flórez Mejìa (CMI). We thank Astri Suhrke, Roland Paris and Rachel Sieder for helpful comments on earlier drafts of this paper.

International engagement in ongoing democratisation and peace processes is a hugely important area for diplomacy and high level external intervention, which aims to further political stability and development but can have a range of unintended consequences.

2 This is what Ruti Teitel defines as the third phase of transitional justice Teitel, Ruti. 2003. Transitional Justice Genealogy. Harvard Human Rights Journal 16 (Spring): 69-94. 3 The Canadian truth commission’s work is still ongoing. See http://www.trc.ca/websites/trcinstitution/index.php?p=3 (website checked 26 May 2011). The International Centre for Transitional Justice characterises these measures as “transitional justice”, although there is an ongoing scholarly debate on whether these measures should rather be characterized as restorative justice or historical reparations. We lean towards the latter interpretation. The debate highlights the increasingly blurring borders of what should be counted as “transitional justice” and demonstrates that transitions themselves are always an elastic and moving target. 4 Mendeloff, David. 2004b. Truth-Seeking, Truth-Telling, and Postconflict Peacebuilding: Curb the Enthusiasm? 1. International Studies Review 6 (3): 355-380.

http://www.trc.ca/websites/trcinstitution/index.php?p=3�


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Substantive national and international efforts have gone into establishing and implementing these mechanisms worldwide, including substantial donor funding. One may speak of a virtual TJ “industry”, spearheaded by such organisations as the International Center for Transitional Justice (ICTJ).5

Largely based on the early Latin American transitional justice experience, the academic literature claims that formal mechanisms such as criminal prosecutions, amnesties, truth commissions and economic and symbolic reparations are important aspects of building peace and/or democracy as they help to create a break with the past; establish the rule of law and ensure respect for human rights; deter further violence; encourage democratisation; and promote peace, justice and reconciliation.

6 Though there has been substantial progress in trying to verify some of these claims through empirical analysis, the evidence to support these claims remains highly contested and inconclusive.7 As noted by Olsen et al, “the proliferation of mechanisms and these divergent interpretations of their success notwithstanding, we know very little about whether transitional justice actually achieves the lofty goals it promises”.8

One of the potential reasons for why empirical evidence is so sketchy and findings internally contradictory is that the importance of context for understanding the impact of transitional justice mechanisms has been severely understudied. Claims in the literature pertaining to all the good things that transitional justice may be expected to achieve are universal. That is, claims are not made with respect to context. Accordingly, much of the recent (especially statistical analysis) does not take context into account when assessing what difference transitional justice makes with respect to, for example, the development of democracy or the respect for human rights. Yet, is it reasonable to expect that a truth commission will have the same function in a society torn by long-term civil war or genocide, where hundreds of thousands of people have been directly affected by violence, as in a society where “only” hundreds of people have been direct victims of violence and the majority of the

This is troubling given that the presence – or absence – of transitional justice mechanisms after the end of conflict or political violence has potentially great impact on victims and their families as well as larger societal and institutional impact.

5 There are no exact figures on this. No comprehensive data set exists on the actual costs of TJ, although the political economy of TJ is becoming a growing topic of scholarly interest. For some reflections on this topic, see Olsen, Tricia D., Leigh A. Payne, and Andrew G. Reiter. 2010a. The Justice Balance: When Transitional Justice Improves Human Rights and Democracy. Human Rights Quarterly 32 (4): 980-1007, Olsen, Tricia D., Leigh A. Payne, and Andrew G. Reiter, eds. 2010c. Transitional Justice in Balance: Comparing Processes, Weighing Efficacy. Washington D.C.: United States Institute of Peace Press. 6 Bassiouni, M. C., ed. 2002. Post-conflict justice. Ardsley, N.Y.: Transnational Publishers, De Greiff, Pablo 2006a. "Repairing the Past: Compensation for Victims of Human Rights Violations." In The Handbook of Reparations, ed. Pablo De Greiff. Oxford: Oxford University Press, Hayner, Patricia B. 2001. Unspeakable Truths. Confronting State Terror and Atrocity. New York and London: Routledge, Roht-Arriaza, Naomi, and J. Mariezcurrena, eds. 2006. Transitional Justice in the Twenty-First Century. Beyond Truth versus Justice. Cambridge: Cambridge University Press. 7 This is true although important comparative studies on the subject have started to be published in very recent years and there is a proliferation of new data sets that will allow more rigorous testing of theoretical claims in the future. 8 Olsen, Tricia D., Leigh A. Payne, and Andrew G. Reiter, eds. 2010c. Transitional Justice in Balance: Comparing Processes, Weighing Efficacy. Washington D.C.: United States Institute of Peace Press., p. 134.


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population have conducted their lives as usual during periods of repression? In this paper we ask, how does context matter for understanding the performance/impact of transitional justice processes in post-authoritarian versus post-conflict situations?

To address these questions, we develop an analytical framework for assessing the impact of various transitional justice mechanisms on peace and democracy. The point of the framework is to structure systematic, comparative analysis to examine how far the intended positive effects of transitional justice on peace and democracy are in fact realised – or were realisable in the first place - and identify obstacles and limitations.

This paper is divided into three main parts. Following this introduction, PART I first examines some of the overarching goals of transitional justice, such as truth, justice, and reconciliation – and how they link to the broader goals of ‘peace’ and ‘democracy’. We next present four main transitional justice mechanisms (TJMs: trials, truth commissions, reparations, and amnesties) and the claims and counter-claims pertaining to the expected achievements of each. We conclude the first part by presenting a brief synopsis of large-n studies that have empirically examined the impact of TJMs on peace and democracy respectively.

To facilitate systematic qualitative cross-country analysis, we need to examine roughly the same kind of variables across cases. In PART II we outline guidelines for identifying a range of variables that will guide systematic data collection. This will be the first building block in what we hope can later be developed into an international qualitative data base for impact assessment of transitional justice. PART III teases out some key hypothesis regarding how impact of transitional justice mechanisms may be expected to play out differently in two main kinds of contexts: (1) transitions from various types of authoritarian regimes to (more) democratic regimes and (2) transitions from war or violent conflict to (more) peaceful societies.


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PART 1: FRAMING THE RESEARCH QUESTIONS

1.1. The overarching goals of transitional justice (processes) The academic TJ literature has grown enormously over the last two decades. Whereas the early TJ literature was law-focused and dealt mostly with issues of truth commissions or criminal prosecutions/ amnesty of perpetrators9; more recently the emphasis has been placed on the role of victim reparations10 along with more informal local justice initiatives.11 With the diversification of mechanisms, scholarly debate shifted toward discussing the meaning of key concepts such as ‘truth’, ‘justice’, ‘peace’, and ‘reconciliation’, as well as the mix of short and medium-term aims that are assigned to particular mechanisms. Besides conceptual discussion, early scholarly work was principally concerned with describing the establishment of TJMs in various countries. Recently, concerns have shifted notably to debates on how to define and measure the impact of TJMs on conflict reduction and democratisation, highlighting the need for a social scientific approach to complement legal expertise. Methodological and qualitative issues in evaluation include the question of whether some aims are inherently contradictory. For example, is it possible to achieve both ‘peace and justice’ and ‘truth and justice’?12

The goals of transitional justice have shifted across time. They are empirically grounded. The term ‘transitional justice’ was first coined by Ruti Teitel in 1991, although the

Or are there tradeoffs? And is it possible to achieve all aims at the same time? Or must one go for one goal at a time? These questions become important in the discussion of timing and sequencing of transitional justice mechanisms.

9 Hayner, Patricia B. 2001. Unspeakable Truths. Confronting State Terror and Atrocity. New York and London: Routledge., Kritz, Neil, ed. 1995. Transitional Justice. How Emerging Democracies Reckon With Former Regimes. Vol. I-III. Washington D.C.: United States Institute of Peace Press., Minnow, Martha. 1998. Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence. Boston: Beacon Press., Roht-Arriaza, Naomi, ed. 1995. Impunity and Human Rights in International Law and Practice. New York & Oxford: Oxford University Press., Rotberg, Robert I., and Dennis Thompson, ed. 2000. Truth v. Justice. The Morality of Truth Commissions. Princeton, New Jersey: Princeton University Press., Teitel, Ruti. 2000. Transitional Justice. New York: Oxford University Press. 10 García-Godos, Jemima. 2008. Victim reparations in the Peruvian Truth Commission and the challenge of historical interpretation. International Journal of Transitional Justice 2 (1): 63-82.; De Greiff, Pablo 2006a. "Repairing the Past: Compensation for Victims of Human Rights Violations." In The Handbook of Reparations, ed. Pablo De Greiff. Oxford: Oxford University Press., De Feyter, K., S. Parmentier, and et al., eds. 2005. Out of the Ashes. Reparation for Victims of Gross and Systematic Human Rights Violations. Antwerpen - Oxford: Intersentia., Du Plessis, M., and S. Peté, eds. 2007. Repairing the Past? International Perspective on Reparations for Gross Human Rights Abuses. . Antwerpen – Oxford Intersentia, Rubio-Marín, R. 2006. What happened to the women? Gender and reparations for human rights violations. New York: Social Science Research Council., Torpey, J. 2006. Making whole what has been smashed: on reparations politics. Cambridge, Mass.: Harvard University Press. 11 Stover, Eric, and Harvey M. Weinstein, eds. 2004. My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity Cambridge University Press. See also Hinton, Alexander, ed. 2010. Transitional Justice: Global Mechanisms and Local Realities after Genocide and Mass Violence,: Rutgers State University Press. 12 A central work in the ‘truth versus justice’ debate is Rotberg, Robert I., and Dennis Thompson, ed. 2000. Truth v. Justice. The Morality of Truth Commissions. Princeton, New Jersey: Princeton University Press.


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roots of the concept stretch back much further.13 Teitel distinguishes between three major phases. Phase I, between the end of World War II and the onset of the Cold War, was characterised by interstate cooperation, war crimes trials and sanctions, as seen in the Nuremberg and Tokyo trials. Phase II, the post–Cold War phase, coincided with the ‘third wave of democratization.’14

In Phase III, the current phase, transitional justice has become an established component of postconflict processes. Discussions of transitional justice frequently begin even before a conflict has ended. A particular feature of this phase is an increased interest in local or traditional processes of justice and reconciliation.

This period saw diversification of the formal mechanisms employed to bring about transitional justice, including a series of non-legal mechanisms such as truth commissions. The TJ discourse expanded from an almost exclusive focus on legal responses, intended primarily to ensure the rule of law, to a more diverse focus on ‘truth’ and ‘justice,’ with reconciliation as a desired outcome.

15 Another feature of the third phase is diversification of actors: in addition to local actors, including ordinary citizens at the grassroots level, there has been a proliferation of donors eager to contribute to a ‘justice cascade.’16

The transitional justice literature was initially dominated by legal scholars and political scientists, who tended to take a narrow approach to the topic. More recent contributions from philosophers, anthropologists, criminologists, sociologists, historians, and psychologists, amongst others, have made the field truly interdisciplinary. The debate has, as a result, become increasingly complex. From a focus on retributive justice and the rule of law, the discussion of transitional justice has broadened to include other elements such as forgiveness, healing and reconciliation. This increased diversity in the academic debate reflects the increased diversity of practical approaches to transitional justice on the ground.

Human rights and international legal norms are increasingly cited by both academics and practitioners.

The literature on transitional justice is full of claims about the intended or desired impact of various processes. Among the outcomes, truth, justice, and reconciliation are cited most frequently.17

13 Teitel, Ruti. 2008. Editorial Note-Transitional Justice Globalized. The International Journal of Transitional Justice 2: 1-4. Another well-cited early user of the concept “transitional justice” is Kritz, Neil, ed. 1995. Transitional Justice. How Emerging Democracies Reckon With Former Regimes. Vol. I-III. Washington D.C.: United States Institute of Peace Press.; Elster, Jon. 2004. Closing The Books: Transitional Justice In Historical Perspective. Cambridge: Cambridge University Press.

Claims regarding the interrelationship between these three overarching

14 Huntington, Samuel P. 1991. The Third Wave: Democratization in the Late Twentieth Century. New York and London: Cambridge University Press. 15 See Shaw, Rosalind, Lars Waldorf, and with Pierre Hazan, eds. 2010. Localizing Transitional Justice: Justice Interventions and Local Priorities after Mass Violence. and Viaene, Lieselotte. 2010a. Dealing with the Legacy of Gross Human Rights Violations in Guatemala: Grasping the Mismatch between Macro Level Policies and Micro Level Processes. The International Journal of Human Rights (30 September): 1-22.

16 See Lutz, Ellen, and Kathryn Sikkink. 2001. The Justice Cascade: The Evolution and Impact of Foreign Human Rights Trials. Chicago Journal of International Law 2 (1): 1.33.

17 Note that the focus on reconciliation in the field of transitional justice (TJ) is relatively recent. See Prager, Carol A.L. 2003. "Introduction." In Dilemmas of Reconciliation: Cases and Concepts, ed. Carol A.L. Prager, and Trudy Govier. Waterloo, Ontario, Canada: Wilfrid Laurier University Press., p. 1. Central early works on reconciliation include Minnow, Martha. 1998. Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence. Boston: Beacon Press, Osiel, Mark.


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goals have shifted over time. So have the claims pertaining to the links between immediate goals of “truth and justice” on the one hand and long-term goals of “peace and democracy” on the other hand.

Some kind of formal accounting for the past in terms of ‘truth-seeking’ or ‘truth-telling’ is an essential component of a successful democratisation or peacebuilding process. Truth-telling is assumed to (1) encourage social healing and reconciliation, (2) promote – or sometimes replace - justice, (3) allow for the establishment of an official historical record, (4) serve a public education function, (5) aid institutional reform, (6) help promote democracy, and (7) pre-empt as well as (8) deter future atrocities.18

The concept of ‘justice’ has generated an expansive set of subcategories: forward-looking justice, backward-looking justice, retributive justice, restorative justice, retroactive justice, reparatory justice, administrative justice, local justice, traditional justice, historical justice, and more. Each term has different content and connotations. Local perceptions of what justice means will probably display even more variance than the collection of terms listed above. If we here narrow the discussion to punitive or retributive justice, legal or criminal justice mechanisms are essential to establish the rule of law – at least in Western democracies.

‘Truth-telling’ or ‘truth-seeking’ may be achieved principally through truth commissions, but also through exposure of human rights violations in court trials – a point we shall return to in more detail below. Overall, it is claimed that, ‘truth-telling’ relates to democracy and peace(building) by addressing grievances deriving from human rights violations in war and civil conflict, by addressing the presumed causes of violence, and by promoting non-violent ways of dealing with social conflict in the future.

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The fact that peoples’ need for and understanding of ‘truth’ and ‘justice’ (and how these are implemented varies in different contexts and over time) is yet to be comprehensively resolved. Another point of contention – both theoretically and empirically – is the question of how truth telling and justice link to reconciliation. Publicly revealing the truth about past abuses has been considered an obstacle to reconciliation (especially in the short run) but also a prerequisite for reconciliation (in the long run).

Punishment dominates our understanding of transitional justice” as it is “emblematic of accountability and the rule of law” (Teitel 2000). Justice in the form of prosecution for past human rights violations is necessary to establish respect for human rights and has a deterrence effect to hinder future abuse.

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1997. Mass Atrocity, Collective Memory, and the Law. New Brunswick, NJ: Transaction. Other desired outcomes include a strengthening of the rule of law, a more stable peace, accountability, social reconstruction, a deepening of democracy and assurance that gross human rights violations will not happen again.

Truth, in turn, has been viewed as both an

18 Mendeloff, David. 2004a. Truth-Seeking, Truth-Telling, and Postconflict Peacebuilding: Curb the Enthusiasm? International Studies Review 6 (3): 355-380.(2004) 19 Note, however, that that there is considerable debate about this issue as the rule of law is a culturally relative construct. Anthropologists would say “what if these categories have limited meaning for people on the ground, who may not have the “establishment of the rule of law” as their priority?” We thank Rachel Sieder for reminding us about this important point. Personal communication, 29.06.11.

20 In the case of the International Criminal Tribunal for the former Yugoslavia, Madeleine Albright in 1994 argued that “establishing the truth about what happened in Bosnia is essential to—not an obstacle to—national reconciliation.” Cited in Leebaw, Bronwyn Anne 2008. The Irreconcilable Goals of Transitional Justice. Human Rights Quarterly 30 (1): 95-118., p. 96.


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obstacle to and a prerequisite for justice.21

Justice and reconciliation have been seen both as conflicting and as mutually reinforcing. “Truth” and “justice” have been considered important components of ensuring lasting peace and constructing viable democracies.

1.2. Claims pertaining to particular transitional justice mechanisms Claims in the literature do not only pertain to grand words like “truth”, “justice”, “peace” or “reconciliation”: they are also tagged on to the various transitional justice mechanisms. When assessing the impact of various TJMs, it is thus important to know what kind of goals – implicit or explicit – and expectations – implicit or explicit – are associated with each mechanism. People (individuals or groups) may demand “truth” or “justice” or yearn for “peace” and “reconciliation”. But what are the concrete expectations on the ground, or among rulers and politicians, when a truth commission is established? Or when trials are being held? Or when reparation programs are approved by parliament? Conversely, what do amnesties hope to achieve? What truth commissions hope to achieve We adopt Mark Freeman’s definition of a truth commission to be

“an ad hoc, autonomous, and victim-centred commission of inquiry set up in and authorised by a state for the primary purposes of (1) investigating and reporting on the principal causes and consequences of broad and relatively recent patterns of severe violence or repression that occurred in the state during determinate periods of abusive rule or conflict, and (2) making recommendations for their redress and future prevention”.22

At least 20 different goals have been expressed in different contexts where truth commissions have been established. Truth commissions are generically assumed to promote a wide range of objectives, including (in alphabetical order) accountability; acknowledgment; amnesty; apology; coexistence; confession; dignity; forgiveness; healing; human rights culture; justice; mercy; national unity; nunca mas or “never again”; peace; punishment; reconciliation; reconstruction; remorse; reparations; repentance; responsibility; restoration; retribution; rule of law; and truth.23

21 In the 1980s and 1990s, there was ‘a suspicion that truth commissions are likely to weaken the

prospect for proper justice in the courts, or even that commissions are sometimes intentionally employed as a way to avoid holding perpetrators responsible for their crimes.’ Hayner, Patricia B. 2001. Unspeakable Truths. Confronting State Terror and Atrocity. New York and London: Routledge. p. 86.

Truth, then, is thus just one of many goals. Some of these goals may be expressed in varying numbers and in different combinations for each truth commission. Although the mandates of the truth commissions vary widely, many of them have

22 Freeman, Mark. 2006. Truth Commissions and Procedural Fairness. New York: Cambridge University Press., p. 18 Note that is a more restrictive definition than Hayner’s seminal definition of ‘truth commissions’: “bodies set up to investigate a past history of violations of human rights in a particular country – which can include violations by the military of other government forces or armed opposition forces” Hayner, Patricia B. 1994. Fifteen Truth Commissions - 1974 to 1994: A Comparative Study. Human Rights Quarterly 16 (4): 597-655. 23 These are goals or professed aims compiled from the mandates of different truth commissions and/or goals attributed to truth commissions in the transitional justice literature.


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reconciliation as a specific end goal.24

However, just as some truth commission have explicitly included “reconciliation” in its title, other commissions have deliberately excluded the word “reconciliation”.

What trials hope to achieve By trials we mean criminal prosecution for human rights violations. By prosecution we mean processes that include indictments, arrests, extraditions, detentions, as well as trials for violations of core human rights by state officials.25 There are four main kinds of formal courts in which such trials may take place: national courts, international ad hoc tribunals, mixed courts (so-called hybrid courts), and, as of recent years, the International Court of Justice (ICC).26

In addition, prosecution may also take place in semi-formal court structures, like those of the gacaca courts in Rwanda.

Figure 1: Courts in which trials for gross human rights violations may take place

24 This is reflected in the names of many commissions, such as National Commission for Truth and Reconciliation (Chile); Commission for Reception, Truth and Reconciliation (East Timor); National Reconciliation Commission (NRC) (Ghana); National Commission for Truth and Justice (CNVJ) (Haiti); Comisión de la Verdad y Reconciliación - Truth and Reconciliation Commission (TRC) (Peru); Truth and Reconciliation Commission (TRC) (Sierra Leone); Truth and Reconciliation Commission (TRC) (South Africa); Truth and Reconciliation Commission (TRC) for Serbia and Montenegro (Yugoslavia).

25 We borrow the definition of prosecution from Kim, Hunjoon, and Kathryn Sikkink. 2010. Explaining the Deterrence Effect of Human Rights Prosecutions for Transitional Countries. International Studies Quarterly 54 (4): 939-963. 26 The permanent international criminal tribunal, the International Court of Justice (ICC), can only investigate cases of human rights violations of the most severe kind (genocide, crimes against humanity, and war crimes) if the state where the violations have taken place is unable and/or unwilling to prosecute.

ICC (the

Hague)

International criminal tribunals/

Mixed courts

National courts (located in each country where violations have taken place)


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Why prosecute? In post-authoritarian settings, gross human rights violations stemming from dictatorship periods are particularly serious crimes because they are committed by the very officials or institutions whose responsibility it is to enforce the law. In Latin America, the state apparatus committed, supported, or tolerated these violations, and the state, specifically the judiciary, failed to investigate the crimes at the time they occurred. Given that the governments installed after the transitions to democracy were supposed to guarantee the human rights of all their citizens, their responses to past human rights violations were of utmost importance for democratic consolidation and for (re)establishment of the rule of law.27

These challenges may be even greater after (prolonged) violent conflict, where violations are committed on massive scales and the justice systems more often than not are in shambles. Genocide or mass killings may have been ordered or encouraged by the state and its supporters. One of the questions we wish to explore here is whether leaving massive crimes to go unpunished is likely to further undermine the rule of law and the prospects for democracy after the end of the conflict. Furthermore, accountability for gross human rights violations is considered necessary or desirable for a complex list of moral, legal, and institutional reasons. Supposedly, punishment creates accountability, restores justice and dignity to the victims of abuse, establishes a clear break with past regimes, demonstrates respect for democratic institutions (particularly the judiciary), (re)establishes the rule of law, contributes to reconciliation, and helps ensure that similar atrocities will never happen again. If hideous crimes go unpunished, it is alleged, people in newly democratic countries will be unable to trust the state in general and the legal system in particular. At worst, state violence may resume.

27 Rule of law is a widely contested concept. For a good definition, see Domingo, Pilar. 1999. "Judicial Independence and Judicial Reform in Latin America." In The Self Restraining State: Power and Accountability in New Democracies, ed. Andreas Schedler, Larry Diamond, and Marc F. Plattner. Boulder, Col.: Lynne Rienner Publishers, Inc. 151-175. On the various meanings of the rule of law in the Latin American context, see Carothers, Thomas. 2001. "The Many Agendas of Rule of Law Reform in Latin America." In Rule of Law in Latin America: The International Promotion of Judicial Reform, ed. Pilar and Rachel Sieder Domingo. London: Institute of Latin American Studies, University of London. 4-16, Correa Sutil, Jorge. 1999. "Judicial Reforms in Latin America: Good News for the Underprivileged?" In The (Un)Rule of Law & the Unprivileged in Latin America, ed. Juan E. Méndez, Guillermo O'Donnell, Paulo Sérgio Pinheiro. Notre Dame, IN: University of Notre Dame Press. 255-77, Domingo, Pilar and Rachel Sieder, ed. 2001. Rule of Law in Latin America: The International Promotion of Judicial Reform. London: Institute of Latin American Studies, University of London, O'Donnell, Guillermo. 1999. "Horizontal Accountability in New Democracies." In The Self-Restraining State. Power and Accountability in New Democracies, ed. Andreas Schedler, Larry Diamond, and Marc F. Plattner. Boulder, Col.: Lynne Rienner Publishers, Inc. 29-51, Salas, Luis. 2001. "From Law and Development to Rule of Law: New and Old Issues in Justice Reform in Latin America." In Rule of Law in Latin America: The International Promotion of Judicial Reform, ed. Pilar and Rachel Sieder Domingo. London: Institute of Latin American Studies, University of London. 17-46, Schor, Miguel. 2000. "The Rule of Law and Democratic Consolidation in Latin America." (October 12 2001), Ungar, Mark. 2002. Elusive Reform. Democracy and the Rule of Law in Latin America. Boulder, CO: Lynne Rienner Publishers, Inc.


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What reparations hope to achieve There is an increasing understanding of the need for restorative justice, either as a complement to, or in some cases as a replacement for punitive justice.28 Reparations are projects or programs implemented in countries that have either emerged from conflict or undergone transitions to democracy “that seek to make up, in some way, for the harms endured by some members or sectors of society”.29 Different types of reparations can be designed and implemented to address a wide spectrum of victims’ needs, from restitution and compensation to rehabilitation and symbolic reparation.30

These include monetary compensation, pensions, health benefits, scholarship for children of victims, land redistribution, memorials etc. The immediate professed aim of reparations is to put right or compensate victims and their families for human rights violations and suffering. Reparations are often ordered as a follow-up to truth commissions in the recommendations of the truth commission reports.

Reparations are generally believed to have a positive impact on justice and reconciliation. The underlying assumption is that in societies emerging from a violent past, physical, psychological and social damage must be acknowledged and addressed in order to heal and reconcile. Victim reparations focus on the victims of violence and abuse, acknowledging their suffering and needs, and attempts to restore the damage done. Latin America has experimented with community-level as well as with individual reparations, and has recently seen a wave of memorialisation activities, again making it a potentially important comparative test case. African countries, in particular South Africa and Malawi, have also issued large scale reparations programs, though they are reported to have been of limited success.31

What amnesties hope to achieve By amnesties we mean measures taken to ensure impunity for human rights perpetrators and thus preclude prosecution for past human rights violations. Amnesties can be put into laws, or take the form of unwritten agreements (de facto amnesties). Amnesties can include all crimes or some crimes; all perpetrations (blanket amnesties) or only some perpetrators (partial amnesties).

28 Note that reparations are a common part of criminal justice also in peaceful times in well-functioning democracies. Victims – or their families – may be paid monetary compensation for damage suffered, such as after car accidents or child abuse, by the person(s) who has invoked the damage. 29 De Greiff, Pablo 2006a. "Repairing the Past: Compensation for Victims of Human Rights Violations." In The Handbook of Reparations, ed. Pablo De Greiff. Oxford: Oxford University Press., p. 1. 30 Garcia-Godos, J., and K. A. O. Lid. 2010. Transitional Justice and Victims' Rights before the End of a Conflict: The Unusual Case of Colombia. Journal of Latin American Studies 42: 487-516.; De Greiff, Pablo ed. 2006b. The Handbook of Reparations. Oxford: Oxford University Press. See also Viaene, Lieselotte. 2010b. Life is Priceless: Maya Q’eqchi’ Voices on the Guatemalan National Reparations Program. International Journal of Transitional Justice 4 (2): 4-25. 31 See Cammack, Diana. 2006. "Reparations in Malawi." In The Handbook on Reparations, ed. Pablo de Greiff. Oxford: Oxford University Press. 215-256. and Colvin, Christopher J. 2006. "Overview of the Reparations Program in South Africa." In The Handbook on Reparations, ed. Pablo de Greiff. Oxford: Oxford University Press. 176-214.


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Amnesties have been issued or proclaimed when a government has been either unwilling or politically unable to prosecute alleged human rights violators after political transition (to a more democratic regime), or formed the part of peace agreements after the end of a violent conflict. In the ‘peace versus justice’ debate, a central argument has been that pursuing prosecutions during an active conflict can interfere with the peace process. International law recognises the validity of limited forms of amnesty when used to end conflict. Most forms of domestic amnesty are however not compatible with the emerging internationally-recognised ‘right to truth’, and the longstanding right to justice, to which relatives and survivors are entitled. Regional human rights mechanisms, such as the Interamerican human rights system, have repeatedly declared blanket domestic amnesties in Latin America to be incompatible with international obligations. The early Southern Cone examples, essentially one-sided amnesties brought in to favour outgoing authoritarians, have come in for particular criticism. These amnesties are typically viewed as “denials of justice that encourage future impunity”.32 Yet, some scholars maintain that amnesties can pave the way for ‘truth’ and ‘justice’ in the long run.33 In Central America, amnesties genuinely favoured both sides and were undeniably key in ending long running civil conflicts. The main argument in favour of amnesties is thus that they support peacebuilding in cases where prosecution would threaten a fragile peace.34

This can be seen as power politics trumping victims’ needs, although it is unquestionably in the short-term interests of victims that the conflict ends.

A brief summary As we can see from the foregoing section, there is a whole array of claims with respect to the desired achievements of transitional justice (TJ) in general and the impact of individual transitional justice mechanisms (TJMs) in particular. The result is a virtual jungle of cross-cutting causal arrows. In our theoretical framework we will try to untangle and clarify the relationships between individual TJMs and their different goals – and figure out whether the goals and ambitions of different TJMs are compatible or irreconcilable.35

Some of the chief claims in the literature are summed up, albeit very schematically, in Figure 2 below. They illustrate only a small selection of the potential causal connections between individual TJMs and their main hoped-for achievements.

32 Thoms, Oskar N.T., James Ron, and Roland Paris. 2008. "The effects of transitional justice mechanisms: A summary of empirical research findings and implications for analysts and practitioners." In CIPS Working Paper, Center for International Policy Studies. Ottawa. 1-91. 33 This depends on what the terms of the amnesty are, and what kind of legal paper trails are kept open or not. Cath Collins comparison of El Salvador and Chile is instructive on this issue. See Collins, Cath. 2010. Post-Transitional Justice: Human Rights Trials in Chile and El Salvador University Park, PA: Pennsylvania State University Press. 34 Mallinder, Louise. 2008. Amnesty, Human Rights and Political Transitions: Bridging the Peace and Justice Divide. Oxford and Portland, Oregon: Hart Publishing. 35 We borrow the term from Leebaw, Bronwyn Anne 2008. The Irreconcilable Goals of Transitional Justice. Human Rights Quarterly 30 (1): 95-118.


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Figure 2: Central TJMs and what they hope to achieve

As Figure 2 suggests, we may distinguish between immediate goals of individual TJMs (i.e. justice, truth, and reconciliation) and long-term goals such as democracy and peace. ‘Democracy’ and ‘peace’ are here used in the “thick” sense.36

Arguably, electoral democracy can well be established without resort to transitional justice mechanisms. Similarly, one could argue that particularly in civil war contexts, peace is a short term goal in some circumstances. Peace in the meaning of absence of fighting/violence can well be achieved through a peace agreement that is respected by both parties. However, to “mend the social fabric” of society in the long term may require different mechanisms or tools, such as transitional justice. The international community and donors today certainly believe that implementing transitional justice in contexts of political and democratic transitions is a good thing. One of the questions we explore in this analysis is if and how transitional justice mechanisms feed into and strengthen the processes of democratisation and peacebuilding. For the purposes of this analysis we are therefore interested in the claims that are made with respect to the impact of transitional justice on (1) democracy and (2) peace, and the mechanisms whereby these impacts are in fact exercised.

36 We here understand democracy as going beyond electoral democracy. Likewise, we understand peace as positive peace. See conceptual clarification in Part II, 2.1.

Peace

Democracy

Trials

TC

Amnesties

Reparations

Justice

Truth

Reconciliation


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1.3. Impact of TJMs on democracy and peace: The main claims In the 1980s and early 1990s, there was a general scholarly pessimism regarding the impact of human rights trials on the prospects for democracy and democratic consolidation. Pushing for trials, it was argued, would have a destabilising effect and threaten democracy. This argument was formulated based, in essence on the Latin American experience of transitions from authoritarian rule to democracy in the 1980s and 1990s.37

Years later, when democracies had proven to survive in Latin America, the main claim coming out of the more recent TJ literature was that trials will have a positive effect on democracy by having a deterrence effect and by strengthening the rule of law.

Perceived as less ‘threatening’ because they do not have prosecutorial power, truth commissions were from the start generally believed to have a positive effect on democracy. Truth commissions are also generally assumed to have a positive impact on conflict torn societies by promoting reconciliation and peaceful coexistence. Reparations are victims centred and meant to have a restorative effect on the individual and societal level. If carried out well, reparations may have a positive effect on people’s perception of the state and hence increase faith in democratic state institutions, though we have come across no claims made with respect to direct impact of reparations on democracy or peace. By contrast, the expected links between amnesties and democracy/peace are clear. In transitions from authoritarian rule, guarantees for impunity through formal amnesties have often been considered vital to holding elections or facilitate transfers of power to democratically elected new governments. Similarly, the most frequently used argument for introducing amnesties for gross human rights violations in post-conflict countries (or when conflict is still ongoing) is that formal guarantees for immunity is the only tool that will make warring parties sit down at the negotiation table and hence secure peace. The anticipated negative and positive impacts of these four TJMs on democracy and peace respectively are summed up in the Table 1 below.

37 See O'Donnell, Guillermo, Philippe C. Schmitter, and Laurence Whitehead, ed. 1986. Transitions from Authoritarian Rule. Latin America. Vol. 2. Baltimore and London: The Johns Hopkins University Press, Zalaquett, José. 1992. Balancing Ethical Imperatives and Political Constraints: The Dilemma of New Democracies Confronting Past Human Rights Violations. Hastings Law Journal 42 (6): 1425-1438.


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Table 1: Anticipated impacts of TJMs on democracy and peace

TJM IMPACT ON DEMOCRACY

IMPACT ON PEACE

TRIALS

Neg Trials undermine democracy and lead to military coups (Huntington 1991).

Neg Trials undermine peace and lead to renewed violence or an increase in repression (Snyder and Vinjamuri 2003). Under situations of civil conflict and war, human rights prosecutions will exacerbate human rights violations (Kim and Sikkink 2009).

Pos Trials strengthen democracy by building the rule of law.

Pos Human rights trials are both legally and ethically desirable and practically useful in deterring future violations (Méndez 1997, Roht-Arriaza 1995).

TRUTH COMMISSIONS

Neg

Neg

Pos Truth commission strengthen democracy.

Pos Truth commission improve human rights practices and deter future violations.

REPARATIONS

Neg

Neg

Pos Reparations strengthen democracy.

Pos Reparations restore a sense of justice to victims and thus contribute to peace.

AMNESTIES Neg Amnesties undermine democracy by weakening the rule of law.

Neg Amnesties undermine long-term peace and lead to renewed violence.

Pos Securing the military impunity or warring parties from prosecution through amnesty laws has a stabilising, positive effect on democracy.

Pos Amnesties enhance peace and deter future violence.

1.5. What we know about impact of transitional justice processes? How and when do the multiple cross-cutting (and sometimes contradicting) goals of transitional justice mechanisms contribute (1) to enhance peace and (2) to strengthen democracy. More specifically, how useful are TJMs mechanisms in consolidating peace? How and in which ways do these processes contribute to consolidate democracy? When countries like Colombia, the Sudan or the Democratic Republic of Congo are grappling with how to end a violent conflict without giving up accountability for past crimes, what models can they build on? What are they expected to do? How should they go about it? These are not only theoretical and normative questions, but also very practical concerns of politicians, practitioners and donors.


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A first challenge is to find out whether or not the (contradicting) claims set out in Table 1 above are supported by empirical evidence. Although much of the academic debate on transitional justice has been framed by normative claims regarding the desirability of TJMs and their assumed positive impact on the affected society, the claims spelled out in the foregoing section have in recent years been subjected to empirical analysis which has produced some sceptical conclusions. There is now a wealth of ethnographic studies on transitional justice processes. As expected, the emerging literature on impact assessment of TJ mechanisms shows much variation with respect to their areas of impact, which include democratisation, rule of law, increased respect for human rights, human rights culture, violence reduction, peace, reconciliation, to mention but some. Given these multiple dependent variables on which impact of TJMs is assessed, the possibility of gaining cumulative knowledge on the basis of existing impact assessments is very limited - even two decades after the current wave of TJ started in the 1980s. In addition to studies varying greatly in terms of what they try to measure the impact on, most of the literature is descriptive rather than explanatory, and focuses on single-case studies rather than structured comparisons. This in turn reflects (i) a lack of consensus on criteria for assessing impact; (ii) limited or low quality data (which especially limits the usefulness of large-n studies); (iii) poor methodological approaches; and (iv) poorly developed conceptual and theoretical frameworks. This partly reflects the terminological ambiguity that has dominated the TJ field, and the difficulties involved in operationalising and “measuring” multifaceted goals such as ‘truth’, ‘justice’, and ‘reconciliation’. Three separate and extensive literature reviews made towards the end of the last decade found little solid evidence that transitional justice produces either beneficial or harmful effects and unanimously concluded that we know very little about TJ processes.38

In particular, although many countries have employed two or more transitional justice mechanisms in combination, hardly any empirical systematic cross-country comparative analysis existed on the complementary or contradictory effect of these mechanisms when these reviews were conducted. Another key issue which seems to be seriously underplayed in the literature is how the timing and sequencing of TJMs may affect the outcome.

This gap has partly been amended by a growing number of statistical studies published in recent years. Although evidence is still inconclusive and contradictory, there are some important findings and conclusions that provide a good basis for reconceptualising the thinking around TJ impact and thus bring the debate a step further. Therefore, rather than carry out a detailed exhaustive survey of numerous single case studies and comparative 38 Three general literature review studies: Brahm, E. 2007. Uncovering the Truth: Examining Truth Commission Success and Impact. International Studies Perspectives 8 (1): 16-35, Hazan, Pierre. 2006. Measuring the impact of punishment and forgiveness: A framework for evaluating transitional justice. International Review of the Red Cross 88 (861): 19-47, Mendeloff, David. 2004a. Truth-Seeking, Truth-Telling, and Postconflict Peacebuilding: Curb the Enthusiasm? International Studies Review 6 (3): 355-380. Thoms, Oskar N.T., James Ron, and Roland Paris. 2008. "The effects of transitional justice mechanisms: A summary of empirical research findings and implications for analysts and practitioners." In CIPS Working Paper, Center for International Policy Studies. Ottawa. 1-91., p. 4 and p. 12.


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studies that have employed some version of ‘peace’ or ‘democracy’ as their dependent variable, we here only critically examine the conclusions of existing large-n studies. We do this for the following three reasons: First, each case study or small-n comparative studies are likely to use substantially different definitions of the dependent variable (peace/democracy), making it very difficult to generalise findings. Second, extensive literature reviews (as mentioned above) have already concluded that evidence is very inconclusive, and we see no need to repeat this exercise. Third, for all the inherent limitations and shortcomings of statistical studies, we do believe that they generate some testable claims and findings that can be challenged, further explored, and nuanced in qualitative case studies. Statistical findings on the impact of transitional justice A brief summary of the (to date) four large-n studies aiming to measure the impact of various TJMs on peace and democracy respectively illustrate some of the difficulties in the field. Peace as the dependent variable In an early attempt to evaluate the impact of transitional justice mechanisms, Lie, Binningsbø and Gates assess the effects of multiple transitional justice mechanisms on the duration of post–civil war peace.39 Analysing 187 post-conflict cases between 1946 and 2003, they find that the impact of transitional justice on the duration of peace in general is weak.40 War-crimes trials are associated with longer periods of peace, but only in states they classify as non-democracies. For democratic countries the positive effect of trials on peace is negligible. The ‘peace’ measured by Lie et al., however, is defined narrowly as the absence of civil war, that is, of a conflict ‘where the use of armed force between two parties, of which at least one is the government of a state, results in at least 25 battle-related deaths’ per year. Other types of violence are not counted, meaning that post-war countries where many people are killed every year, but the killings are not ‘battle-related’ or do not involve the government, will be classified as being at peace. These authors’ findings therefore do not imply that trials necessarily reduce the overall level of violence. Mani makes a similar observation, citing ‘the danger of backlash and relapse into violence’ as one of the many problems associated with war-crimes trials.41

Three other studies come to dissimilar conclusions. This may be because they use slightly different dependent variables. Each will be discussed in turn.

39 Lie et al. understand peace as negative peace, i.e. the absence of violence. See section 2.1 for a more nuanced discussion on the concept of peace.

40 Lie, Tove Grete, Helga Malmin Binningsbø, and Scott Gates. 2007. "Post-Conflict Justice and Sustainable Peace," World Bank Policy Research Working Paper 4191, April 2007. http://econ.worldbank.org .

41 Mani, Rama. 2005. Rebuilding an Inclusive Political Community After War. Security Dialogue 36 (4): 511-526.


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Democracy and human rights as the dependent variables The effect of human rights trials is furthered explored by Sikkink and Walling in their analysis of all Latin American countries for the period 1979-2004.42 Exploring the impact of human rights trials on human rights, conflict, democracy, and the rule of law in Latin America, the authors wish to test the pessimistic claims made by trial sceptics that human rights trials threaten democracy, increase human rights violations and exacerbate conflict. Their research shows that human rights trials have not undermined democracy or led to an increase in human rights violations or exacerbated conflict in Latin America. Note that the authors make no claims as to the positive effects of trials. They merely refute the negative claims that trials have a negative effect on democracy. This is an important point. One thing is that TJ processes do not favour an interruption of an established democratic order. It is quite another thing for TJ mechanisms to support the establishment of democracies where none previously existed.43

Repression as the dependent variable Kim and Sikkink in a more recent study, further examine the impact of human rights trials and truth commissions on repression (defined as torture, summary execution, disappearances, and political imprisonment).44

This study expands the universe of cases beyond Latin America to include 100 transitional countries across the world for the period 1980-2004. The authors also explore whether human rights prosecution have a deterrence impact beyond the confines for the single country in which the trials occur. They test three hypotheses relevant for our study:

Hypothesis 1: Countries that have held domestic human rights prosecutions or whose officials have been the object of foreign international prosecutions will see greater improvements in human rights practices than those countries that have not held or been the object of human rights prosecutions”. Hypothesis 2: Under situations of civil conflict and war, human rights prosecutions will exacerbate human rights violations (our emphasis). Hypothesis 3: The use of truth commissions will also be associated with improvement in human rights practices.

42 Sikkink, Kathryn, and Carrie Booth Walling. 2007. The Impact of Human Rights Trials in Latin America. Journal of Peace Research 44 (4): 427. The authors have created a new dataset on truth commissions and trials for past human rights violations. In this particular article, they only explore the effects of trials. 43 We thank Rachel Sieder for pointing out this to us. Private communication, 29.06.11. 44 Kim, Hunjoon, and Kathryn Sikkink. 2010. Explaining the Deterrence Effect of Human Rights Prosecutions for Transitional Countries. International Studies Quarterly 54 (4): 939-963. Note that their independent variable, trials, includes both national and international human rights prosecutions. They use the physical integrity rights index from Cingranelli-Richards (2004) human rights database (CIRI) to measure/code repression (their dependent variable).


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Their main finding is that transitional countries with human rights prosecutions are less repressive than countries without prosecutions. They also statistically show that there is a cumulative positive effect of trials: countries that record more ‘trial years’ are less repressive than countries that record fewer trial years. This research provides evidence that prosecutions work both through punishment effects and because they communicate norms. In sum, their study finds empirical support for claiming that human rights trials help decrease repression and hence have a positive effect on human rights protection. Their findings also show that truth commission experience also contributes to improved human rights protection. Finally, and contrary to Snyder and Vinamuri (2003), they find that prosecutions under civil wars do not have a different impact on repression than those in peace. In fact, and consistent with the findings of Lie et al (2007), they find some evidence that prosecutions during civil wars may even led to greater improvements in human rights protection than prosecutions in times of peace. Democracy and human rights as the dependent variables In another recent pioneering study, Olsen, Payne and Reiter use data from the newly created Transitional Justice Data Base, covering 161 countries over 40 years (1970-2007), to examine which transitional justice mechanisms and combinations of mechanisms are associated with positive or negative changes in ‘human rights’ and ‘democracy’.45 This is the largest and most comprehensive cross-country study of transitional justice to date.46

In contrast to the two studies by Sikkink and Walling (2007) and Kim and Sikkink (2010) respectively, Olsen et al (2010) find that single TJ mechanisms used alone do not have statistically significant and positive effects on democracy and human rights. By contrast, the authors show that specific combinations of mechanisms—trials and amnesties or trials, amnesties, and truth commissions—explain improvements in those two political goals. Notably, they find support for a combination of two TJ mechanisms—trials and amnesties—that are generally considered incompatible. They contend that trials provide accountability and amnesties provide stability, leading to improvements in democracy and human rights. Another interesting finding is that truth commissions in isolation have a negative rather than the expected positive impact on democracy and human rights, but have a positive impact when combined with trials and amnesties. These findings are true across different kinds of contexts.

45 Olsen, Tricia D., Leigh A. Payne, and Andrew G. Reiter, eds. 2010c. Transitional Justice in

Balance: Comparing Processes, Weighing Efficacy. Washington D.C.: United States Institute of Peace Press. The main findings are synthesised in Olsen, Tricia D., Leigh A. Payne, and Andrew G. Reiter. 2010b. The Justice Balance: When Transitional Justice Improves Human Rights and Democracy. Human Rights Quarterly. 46 The data base used in the book as well as the articles contains data on the following transitional justice mechanisms: trials, truth commissions, amnesties, reparations, and lustration policies. Leigh A. Payne, Tricia D. Olsen, and Andrew G. Reiter: Transitional Justice Data Base - a dataset of over 900 transitional justice mechanisms implemented world-wide from 1970-2007, including trials, truth commissions, amnesties, reparations, and lustration policies. The data are fully searchable and publicly available here: http://tjdbproject.com/ - a Web site designed by John Fowler Web Consulting.

http://tjdbproject.com/�


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To sum up, these four statistical studies produce very different findings with respect to the impact of trials. This may stem from at least three factors: First, the studies operate with different universes of cases. Whereas Lie et al look exclusively at post-conflict situations (i.e. countries that have suffered civil war), Sikkink and Walling’s findings are limited to Latin America (where all but two cases are post-authoritarian). Second, the studies cover different time periods. Whereas Lie et al take their analysis back to the Second World War, the other three concentrate on the main transitional justice period (i.e. the last 30-40 years). Third, the studies operate with different dependent variables: “repression”, “human rights violations”, “human rights”, and “democracy”. Hence, it is hard to draw conclusive conclusions on regarding the positive/negative/no impact of trials on peace and democracy (the focus of this paper). Note that the only study that addresses the impact on truth commissions (in isolation or in combination with trials or amnesties) is the Olsen et al 2010. Interestingly, their finding of negative impact goes across mainstream claims in the literature, and may be worth to explore further. Apart from the four studies mentioned above, we are not aware of any systematic cross-country analysis, nor – strikingly - of any joint impact assessment of multiple transitional justice mechanisms employed in a given country.47 A few cross-country analyses of a small number of cases exist for single mechanism, which provide very useful insights, empirically as well as methodologically.48 Yet, the bulk of impact assessment studies are single-case studies, which although may be superbly conducted have relatively limited value in terms of generalisation.49

In general, single case studies fail to generate generalisable findings due to their nature of enquiry. Statistical analyses, by contrast, find correlations that, when statistically significant, 47 Note, however, that serious cross-country studies have been done for single TJ mechanisms, such as truth commissions. Wiebelhaus-Brahm, Eric. 2010. Truth Commissions and Transitional Societies: The Impact on Human Rights and Democracy. New York: Routledge. In addition to the Transitional Justice Data Base (by Leigh et al), several large-n data sets are in the making that will allow for future statistical testing of assumptions in the TJ field. The data set on trials in the Southern Cone (UDP) covers Chile and is currently being expanded to include Argentina, Uruguay, and Peru. It is publically available through www.icso.cl/observatorio-derechos-humanos. The amnesty data base by Louis Mallinder provides an overview of all amnesty laws in the world and is being continuously updated. 48 Brahm, E. 2007. Uncovering the Truth: Examining Truth Commission Success and Impact. International Studies Perspectives 8 (1): 16-35; ———. 2010. Truth Commissions and Transitional Societies: The Impact on Human Rights and Democracy. New York: Routledge. 49 See Chapman, Audrey R., and Hugo van der Merwe, eds. 2008. Truth and Reconciliation in South Africa: Did the TRC Deliver? Philadelphia, Pennsylvania: University of Pennsylvania Press. Gibson, James L. 2004a. Does Truth Lead to Reconciliation? Testing the Causal Assumptions of the South African Truth and Reconciliation Process. American Journal of Political Science 48 (2): 201-217, Gibson, James L. 2004b. Overcoming Apartheid: Can Truth Reconcile a Divided Nation. New York: Russel Sage Foundation. Ross, F. 2003. Bearing witness: Women and the truth and reconciliation commission in South Africa. London: Pluto Press. Most of the methodologically stringent since case studies on impact of transitional justice in the African context has reconciliation as its main dependent variable, and almost all are from South Africa. This gives skewed case-based knowledge from the African continent. In the Latin American empirical research on transitional justice, the following cases have received the most scholarly attention: Chile, Argentina, Guatemala and Peru.

http://www.icso.cl/observatorio-derechos-humanos�


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may imply causal relationships (though statistical analysis cannot prove causality). As the four large-n studies examined here show, also statistical approaches to impact assessment generate widely disparate findings. Numbers, after all, are trying to capture complex social, political and legal realities. So where does this leave us? A bit wiser, but not much, we would say, with respect to our understanding of the potential positive and negative impacts of transitional justice on long-term processes such as building peace and (re)constructing democracy. In this project we aim for a middle road: namely to provide a tentative theoretical framework that will facilitate analysis of qualitative cross-country data. We foresee the following advantages: First, using rich empirically grounded comparative data will avoid the pitfalls of extrapolating from a single case to general statements, and hence amend the main disadvantage of single case studies. Second, qualitative comparative analysis will encourage exploring qualitative data along many more dimensions than statistical analysis permits. Third, rich contextual analysis will lend focus to the importance of context – a factor that by definition is left out in large-n analysis. Drawing on the best of both worlds, and avoiding the main pitfalls of both, we thus hope that the tentative framework presented here will encourage further thinking on structured comparative analysis that may bring us one step further in our piecemeal understanding the impact of transitional justice.


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PART II: A TENTATIVE ANALYTICAL FRAMEWORK FOR IMPACT ASSESSMENT 2.1. Conceptual clarifications: The dependent variables When, if, and how, do transitional justice processes make a difference with respect to establishing or re-establishing democracy after authoritarian rule, or in maintaining peace after periods of violent conflict?50

Before we outline the main steps in how we intend to go about answering this question, we need to clarify our two dependent variables: Democracy and peace.

Defining democracy Definitions of democracy span from minimal to comprehensive. A minimum definition of democracy entails free and fair elections, and where the losing parties do not respond with resorting to violence. There are two basic principles: contestation (i.e. permissible opposition, public competition) and participation (the right to participate in public contestation).51

An intermediary notion of democracy entails holding free and fair elections where political parties are free to organise and campaign without facing threats; where there is respect for the rule of law; respect for fundamental human rights (at a minimum the absence of systematic human rights violations); and a minimum of civic trust. A maximalist definition of democracy would additionally include aspects such as democratic deliberation, state guarantees of a whole range of different social and economic rights etc.

Defining peace There are also three main categories of peace, spanning minimalist to maximalist definitions. Negative peace refers to a state where there is an absence of war or violent conflict and low possibility that war/violence will resume. Liberal peace refers to a state characterized by electoral democracy and market reforms.52 Positive peace refers to a state where not only war is absent and institutions function, but where there is also reduced structural violence, equal rights, civil trust, and where conflict resolution takes place without resorting to violence.53

‘Peacebuilding’ – frequently with international involvement – has increasingly become considered the best way to reach a state of ‘peace’ after violent conflict. Different kinds of peacebuilding projects will presumably lead to different kinds of peace. Although definitions differ widely, there seems to be an emerging consensus in the literature that four pillars or main elements should be present in liberal peacebuilding efforts/processes: security (i.e. reduction of/state control of violence), democracy, economic recovery/economic

50 Note that the difference between establishing and re-establishing democracy is potentially huge and will be separated out as an element in the research design. 51 Dahl, Robert A. 1971. Polyarchy: Participation and Opposition. New Haven: Yale University Press. 52 See Paris, Roland. 2004. At War's End: Building Peace After Civil Conflict. Cambridge: Cambridge University Press. 53 Galtung, Johan. 1996. Peace by peaceful means: Peace and conflict, development and civilization. Oslo: Sage.


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development, and statebuilding. There has since the late 1990s been a move from perceiving peacebuilding as principally a strategy to avoid the recurrence of violence to focus more on statebuilding, essentially meaning “the construction or strengthening of legitimate governmental institutions in countries emerging from civil conflict”. This approach was “premised on the recognition that achieving security and development in societies emerging from civil war partly depends on the existence of capable, autonomous and legitimate governmental institutions.”54 Interestingly, transitional justice is not mentioned as part of a peacebuilding strategy by several prominent scholars working on post-conflict resolution.55

From this we may logically deduct that it is possible to construct a liberal peace without addressing violations of the past.

If we move to an understanding of positive peace, though, transitional justice processes may be expected to make a positive contribution, if carried out correctly. Aptly summed up by Mendeloff,

"Though still a point of debate, a consensus on what peacebuilding is or ought to be is emerging. Peacebuilding is the process of consolidating peace in the immediate aftermath of war and involves carrying out activities that help prevent the recurrence of war over the long term - that is, by creating institutions and mechanisms for resolving internal conflict without resort to violence (Hampson 1997; Cousens 2001; Lund 2002). Two points about this definition should be emphasized. First, postconflict peacebuilding has both short- and long-term elements. Distinguishing between them is critical. What is required for peace in the immediate aftermath of conflict is generally not the same as what is required for long- term political, social, and economic reconstruction [---] Second, the ultimate goal of peacebuilding is war prevention. If war resumes, perhaps within a decade of concerted efforts at prevention, peacebuilding has obviously failed."56

To sum up, peacebuilding, is more than just ending violence and implementing measures to prevent violent conflict from breaking out again. Building democracy (i.e. establishing democratic institutions) is an important pillar in peacebuilding. Finally, reduction of human rights violations and increased respect for human rights is an integrated part of both democracy and peace. Thus, the common denominator between peace and democracy is respect for human rights. It is here transitional justice processes may make a difference. To reach the (ideal) end points of ‘peace’ and ‘democracy’ respectively (regardless of which definition one employs), societies need to go through a processes referred to as a ‘transition’.

54 Paris, Roland, and Timothy D. Sisk. 2009a. "Introduction: understanding the contradictions of postwar statebuilding." In The Dilemmas of Statebuilding: Confronting the Contradictions of Postwar Peace Operations, eds. Roland Paris and Timothy D. Sisk. New York: Routledge. 1-20., p. 1. See also Paris, Roland. 2004. At War's End: Building Peace After Civil Conflict. Cambridge: Cambridge University Press. 55 Autesserre, Séverine. 2010. The Trouble with the Congo: Local Violence and the Failure of International Peacebuilding. New York: Cambridge University Press, Paris, Roland, and Timothy D. Sisk, eds. 2009b. The Dilemmas of Statebuilding: Confronting the Contradictions of Postwar Peace Operations. New York: Routledge. 56 Mendeloff, David. 2004a. Truth-Seeking, Truth-Telling, and Postconflict Peacebuilding: Curb the Enthusiasm? International Studies Review 6 (3): 355-380., p. 362.


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Defining transition57

Two key questions present themselves: (1) what exactly do we mean by ‘transition’, and (2) what are the starting and ending points of the process of transition? In general, transition may take place from an authoritarian regime, a one-party state, a military dictatorship, an apartheid state, a civil war, or a situation of genocide to electoral democracy/peace. Depending on who controls the transition process and the balance of power between the brokers, the transition may be negotiated (“pacted”), controlled, abrupt, or revolutionary. Transitions may take place “from above” (top-down/imposed) or “from below” (bottom-up/driven by the people/grassroots). Transitions may be swift or take years.

58

For post-authoritarian contexts, ‘transition’ is the process whereby a society transcends from a “less democratic” to a “more democratic” regime. For situations of civil war, ‘transition’ is the process whereby a society transcends from a “violent” to a “more peaceful regime”.

There is a large scholarly debate on when the transition phase ends and the democratic consolidation phase starts, as well as on when a state –or a society?- has reached a stage of ‘peace’. No clear answers exist. The exact onset and completions for transition are empirically hard to determine.59 There is often a mix of criteria in use. For instance, in studies of the collapse of authoritarian regimes, scholars have used the issuing of new constitutions or the holding of elections as the cut-off point between one regime type and another. In a number of statistical studies on civil war or other kinds of violent conflicts, transitions are considered to have taken place when the number of battle related deaths drops below a certain number, for example 25.60

We propose that elements of both peace and democracy should be used when assessing the transition from one regime type to another, regardless of the type of transition. Specifically, we propose that in transitions from authoritarian rule, at a minimum, fairly free and open elections must have been held at least once. For all kinds of transition (including transitions from violent conflict, such as civil war, genocide, politicide etc.) there must also be rules of engagement (as the rule of law may barely exist in many post-transitional scenarios), and abstention from engaging in societal violence. Furthermore, the absence of systematic state sponsored violence or widespread targeted killings carried out by civilians must be a minimum criterion for a transition to have taken place. Cut-off points like 25 battle-deaths per

57 Transition is part of how we will define the relevant time-frame for comparison of the cases included in this study. 58 This is, in part, based on a definition to appear in Skaar, Elin. Forthcoming (2012). "Transition type." In Encyclopedia of Transitional Justice, eds. Lavinia Stan and Nadya Nedelsky: Cambridge University Press. 59 Different scholars operate with different cut-off points for conflicts and transitions. See Appendix 2 for country case examples. 60 Lie, Tove Grete, Helga Malmin Binningsbø, and Scott Gates. 2007. "Post-Conflict Justice and Sustainable Peace," World Bank Policy Research Working Paper 4191, April 2007. http://econ.worldbank.org .; Olsen, Tricia D., Leigh A. Payne, and Andrew G. Reiter, eds. 2010c. Transitional Justice in Balance: Comparing Processes, Weighing Efficacy. Washington D.C.: United States Institute of Peace Press.


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year (below 25=less violent, from 25-1000 more violent, and over 1000=very violent) is in our opinion too mechanistic and not very helpful in assessing how a country is doing with respect to violence or human rights abuses, as these may take many forms and shapes.61

Qualitative comparative analysis allows us to move beyond simplistic definitions or cut-off points for transition frequently employed in statistical analysis and look at wider ranges of abuses or violence, and a more nuanced understanding of significant changes in the patterns of violations.

2.2. Does context matter? Should we expect the same type of impact from transitional justice mechanisms (TJMs) in different contexts? We ask this question for two reasons: First, because much of the TJ literature poses universal claims regarding the goals and expected good influences of various TJMs, irrespective of where and under what circumstances they are being implemented. Second, because TMS are increasingly being implemented as part of a universal toolkit, apparently often without sufficient knowledge of contextual factors in the societies in which they are being implemented.62 The question of context hence becomes essential to testing the universal claims/universalising practices of transitional justice. In particular, there has been a proliferation of transitional justice measures in post-conflict situations, sometimes even in ongoing conflicts. Could there be that there is a mismatch between the scholarly claims of transitional justice, which were mainly extrapolated from the Latin American experience of transitions from military authoritarianism to democratic rule, and the new post-conflict environments in which TJMs are now frequently employed? Do claims about TJMs need to be revisited in light of these different environments? The importance of context for the impact of transitional justice processes is an underdeveloped issue in the scholarly field of transitional justice.63

We think there are enough substantive differences between post-authoritarian (PA) and post-conflict (PC) settings to warrant a deeper inquiry into how we should expect TJ from operating differently/playing out differently in these two main types of context. More specifically, we propose that the type of context may have implications for both the (optimal) choice of TJMs as well as for their timing and sequencing – and, ultimately, for their implementation and impact.

In this project we therefore study two main groups of transitions: (1) from post-authoritarian to democratic regimes (here called transition type 1) and (2) from conflict to post-conflict

61 This comes in addition to the very simple fact that it makes a big difference whether 1000 people are killed in a population of i.e. 4 million as opposed to a population of 40 million. Strangely, this math is actually ignored in statistical analysis. Calculating violence per capita, i.e. according to population size, would improve analysis and conclusions of studies of civil war conflicts and other conflicts where violence is rampant. 62 This is a criticism that has been raised by scholars and practitioners alike (add references). 63 Olsen et al address the importance of context (post-authoritarianism versus post-conflict) as an important dimension when explaining the choice of TJMs at the end of conflict. However, they do not carry through the analysis to look at what these different contexts may imply for the success of/impact of TJMs. See Olsen, Tricia D., Leigh A. Payne, and Andrew G. Reiter, eds. 2010c. Transitional Justice in Balance: Comparing Processes, Weighing Efficacy. Washington D.C.: United States Institute of Peace Press., chapter 7.


26

societies (here called transition type 2). A core theoretical question to be explored here is how and in which ways we may expect transitional justice mechanisms to play out in these different contexts, which presumably have different dynamics and different end goals. Here are some thoughts with respect to end goals of the TJ processes, peace and democracy: Type 1 transitions (post-authoritarian, PA): Since elections usually characterise the transition from post-authoritarian to (more) democratic regimes, we may reasonably assume that establishing a viable electoral democracy may be one important – perhaps the most important - goal of the transition. Since the authoritarian regime has been characterised by varying levels of conflict and human rights abuses, creating peace will also be a priority. To sum up the goals of transition in rank order: Goal 1: democratic stability Goal 2: democratic consolidation (including addressing abuses of the past) Type 2 transitions (post-conflict, PC): Since the main characteristic of violent conflicts has been high levels of violence, we may reasonably assume that establishing peace (i.e. ending the conflict) will be priority number one. Holding elections and building democracy will most likely gain secondary importance, at least in the immediate aftermath of a cease-fire or a peace agreement. Goal 1: end violence (negative peace) Goal 2: build democracy (liberal peace) Goal 3: build a lasting peace (positive peace) Hypothesis: How well the choice of type, timing and sequencing of transitional justice mechanisms feed into these overall goals of new governments after periods of violence will presumably have bearings on the kind of impact they will have in the societies in which they are being implemented. 2.3. A stepwise approach to assessing the impact of TJMs The principal aim of this project is to analyse how transitional justice (one or a combination of TJMs, i.e. the independent variable(s)) may impact on ‘peace’ and ‘democracy’ (the dependent variables). Having a fair understanding of why and how TJMs are being set up is crucial for understanding what each of these mechanisms can reasonably be expected to achieve. Hence, we need to establish a sounding board against which actual performance/impact may be measured against. We propose to do this in four steps:

• STEP 1: Contextual analysis of period of violence to which TJMs respond • STEP 2: Establishment of TJMs • STEP 3: Implementation of TJMs • STEP 4: Impact assessment of TJMs on peace and democracy

Each of these four steps will be accounted for in some more detail below.


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STEP 1: Context at the time of transition Elements to take into consideration when portraying the context at the time of transition include the following:

- Type of conflict: nature, length, severity, type and extent of human rights violations, parties to the conflict

How well TJMs address the nature of conflict – i.e. the root causes of the conflict (ideological, racial, ethnic, identity based, economic, or socio-economic) – may have implications for their perceived positive or negative impact.64

How far back in time the main violations lie at the time of transition may be of decisive importance for which mechanisms are established. Note that the length of a conflict is not always easy to determine, as different scholars operate with different cut-off points for conflicts and transitions. For violent conflicts, the severity of a conflict is frequently measured by using criteria such as battle-related deaths. In our opinion, this kind of measurement is bound to miss out on a wide range of (gross) abuses routinely employed during violent conflict, frequently way surpassing the scope and importance of battle-related deaths. For the purposes of this analysis we thus explore all kinds of human rights violations, war crimes, and violations of international humanitarian law: extra-judicial deaths (whether battle related deaths or not), torture, rape, genocide, exile, forced disappearance, internal displacement etc. Since TJMs often address some but not all kinds of abuses, it is important to have an overview of the range of abuses that have been committed in the first place. To understand the violations that have been committed, it is also important to identify the parties to the conflict, whether they are state agents, paramilitary groups, or civilians. The parties involved in the repression will frequently have a bearing on what TJMs are considered as desirable and/or viable after a transition. Moving on to the actual termination of the conflict, another set of potentially important factors kick in:

- Termination of the conflict:65

nature of transition, parties/actors in the transition, democratic elections, regime change, balance of power

Much has been written on the importance of the nature of transition and its potential impact for the choices made with respect to transitional justice mechanisms.66

64 Fletcher, Laurel E., Harvey M. Weinstein, and Rowen. 2009. Context, Timing and the Dynamics of Transitional Justice: A Historical Perspective. Human Rights Quarterly 31: 163-220.

Typical arguments

65 We here draw on ———. 2009. Context, Timing and the Dynamics of Transitional Justice: A Historical Perspective. Human Rights Quarterly 31: 163-220. 66 Panizza, Francisco. 1995. Human Rights in the Process of Transition and Consolidation of Democracy in Latin America'. Political Studies XLIII: 168-188.; Roniger, Luis, and Mario Sznajder.


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include balance of power. Although the actor perspective in the studies of transitional justice processes has so far been largely absent (Wiebelhaus-Brahm, Olsen et al 2010 etc), there is a growing literature on the role of international actors such as the UN, in such processes. We are not here principally concerned with the explaining the choice of TJMs at the time of transition. But understanding the political and legal reasoning of different actors, and their relative power at the time of transition and after, will presumably give us a hint about what the mechanisms employed are hoped to achieve as well as how committed the various parties are to making the given TJMs “succeed” (in the sense of achieving its stated goals). STEP 2: Establishment of TJMs67

The transition type to a large extent determines the initial scope of politically available choices of transitional justice mechanisms, although the choices of mechanisms also depend on a whole range of other factors, such as the economic health of the economy.

68

Here we examine principally the four TJMs outlined earlier in this paper: trials, truth commissions, reparations, amnesties. Brief mention will be made of complementary TJMs to paint a broad-brush picture of the full range of measures included in the transitional justice process in a given country.

- Actors behind the establishment of TJMs As mentioned above, focusing on the key actors in the transitional justice process will say something about how committed the various parties are to making the given TJM “succeed” (in the sense of achieving its stated goals). In particular, it will be important to examine the role of civil society and links to transnational activist/NGO networks to account for the demand side of transitional justice.

1999. The Legacy of Human Rights Violations in the Southern Cone. Argentina, Chile, and Uruguay. New York: Oxford University Press.; Skaar, Elin. 1999. Truth commissions, trials - or nothing? Policy options in democratic transitions. Third World Quarterly 20 (6): 1109-1128.; Walsh, Brian. 1996. Resolving the Human Rights Violations of a Previous Regime. World Affairs 158 (3): 111-135.; Zalaquett, José. 1992. Balancing Ethical Imperatives and Political Constraints: The Dilemma of New Democracies Confronting Past Human Rights Violations. Hastings Law Journal 42 (6): 1425-1438. 67 We here draw on the work of Mendeloff, David. 2010. "Transitional Justice and Violent Conflict: A Call for Conceptual and Theoretical Clarity in Assessing Impact. ." Presented at the A Way Out of Violent Conflict? The Impact of Transitional Justice Mechanisms, Solstrand, Bergen, Norway, 4-5 June.; Thoms, Oskar N.T., James Ron, and Roland Paris. 2008. "The effects of transitional justice mechanisms: A summary of empirical research findings and implications for analysts and practitioners." In CIPS Working Paper, Center for International Policy Studies. Ottawa. 1-91. Root, R. K. 2009. Through the Window of Opportunity: The Transitional Justice Network in Peru. Human Rights Quarterly 31 (2): 452-473. 68 See chapter 4 in Olsen, Tricia D., Leigh A. Payne, and Andrew G. Reiter, eds. 2010c. Transitional Justice in Balance: Comparing Processes, Weighing Efficacy. Washington D.C.: United States Institute of Peace Press.


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- Public discourse surrounding establishment of TJM It might be reasonable to assume that public deliberation around the adoption of TJMs is likely to influence the impact TJ processes will have on the given society (individual, groups, and institutions).

- Explicitly stated goals of TJM As mentioned in Part I, any given TJM has a wide range of explicitly or implicitly stated goals and hopes attached to them. We should only gauge the achievements of TJM(s) against the goals that the particular TJM explicitly sets out to achieve. In other words, there must be some kind of standard that we evaluate impact or achievements against. With respect to trials, we want to move beyond the dichotomy of ‘trial’ (where technically, one trial of one person for one criminal event is enough to be recorded as a trial in statistical analysis) versus ‘no trials’. First, we will investigate which courts trials have been carried out in, what the mandate of prosecutorial policies have been (if there has been any such official policy), whether sufficient resources have been allocated to ensure free and fair trials etc. Moreover, we also note that the scope of trials is important. It matters widely whether prosecution is instigated at top-level officials only as opposed to targeting a much broader category of alleged human rights perpetrators. Similarly, it matters whether just a handful of perpetrators or thousands of perpetrators are being prosecuted. Truth commissions as a generic category have at least 20 different goals. Nevertheless, any particular truth commission established in a given country at a given point in time is likely to have a much smaller number of explicit goals. This means that truth commissions, though in quantitative analysis represented as the same entity (either as dependent or independent variable) may in fact mean a wide range of things. Since it is important to evaluate any policy or action in light of what this policy or action hopes to achieve, we wish in our empirical analysis to identify the stated goals of specific truth commissions. Were they established to achieve reconciliation? To uncover only certain human rights violations, or the full spectre? To investigate this, we will check out the mandate for each individual truth commission, to keep as a reference point for what its achievements should be measured against. Note also that in addition to the explicit aims, there may be hidden agendas and unarticulated expectations attached to any given truth commissions. With respect to reparation programmes, we will investigate the political reasoning behind this particular government policy, the criteria for being eligible for reparations (important for the discussion of who was considered a victim and who was considered a perpetrator), the resources allocated to reparations, and the agencies involved in ensuring that reparations will actually be paid and/or implemented. With respect to amnesties, we will investigate the elaborations and politics behind the adoption of amnesty laws and identify the criteria for inclusion/exclusion of those individuals


30

or groups of people who were considered worthy of amnesty, and for what type of crimes amnesty is given. The actors involved and discourse in adopting amnesty laws is crucial for understanding the expectations related to amnesty – which has strong bearings on truth findings as well as the twin issue of accountability.

- Timing for the establishment of TJMs As mentioned above, TJMs may be employed in different stages in the transition process. We will divide timing into four main stages:

1. Before the transition is concluded. This is particular relevant for transitions from violent conflict as TJMs are increasingly implemented as part and parcel of a wider peacebuilding package. The most frequently employed TJM before the end of conflict in the world is the use of various kinds and degrees of amnesties.

2. During the actual transition. The argument is the same as for the point above: This is particular relevant for transitions from violent conflict as TJMs are increasingly implemented as part and parcel of a wider peacebuilding package.

3. Immediately after the transition: This is normal both in transitions from authoritarianism (type 1 transitions) and in transitions from violent conflict (type 2 transitions).

4. Long after the transition has taken place. This may take place in both contexts (as observed in for example the case of Uruguay and the case of Spain and Cambodia).

Importantly, our framework will take into consideration both retrospective and prospective aspects of transitional justice processes, as illustrated in Figure 2 below.

Figure 3: The transitional justice process

Starting point: Consensus that conflict ‘ended’ or significantly changed character, and the implementation of TJ started

End point of the mechanism (but the TJ process continues and needs to be evaluated)

Conflict TRC Trial

Retrospective Prospective (or Retrospective, depending on when analysis starts)

- Sequencing of TJMs (where two or more TJMs in place) This too is an important but understudied aspect of transitional justice (as claimed by Olsen et al 2010, Wiebelhaus-Brahm 2010 and other scholars). There is reason to expect that not only the timing, but also the sequencing of TJMs (where two or more are present) matters for impact assessment. Some examples may illustrate the point: For instance, if a truth commission precedes trials, the information gathered by the TC may be used as evidence in court (as indeed it has in many countries, for instance in Chile, Argentina, Uruguay, and South Africa). Conversely, if trials precede truth commissions, the information disclosed


31

through trials may prompt demands for more justice or for truth. Running trials along with truth commission inquiries (as in the case of Sierra Leone) creates yet different dynamics and expectations.

- TJM in a wider context TJMs may occur in isolation, or be part of a larger, more comprehensive policy. For instance, in situations of negotiated peace after a violent conflict, TJMs may form part and parcel of a package for peace (as in the UN-led peace process in Guatemala). In a transition from authoritarianism to (more) democracy, holding trials or establishing a truth commission can be part of a conscious government policy to strengthen the rule of law and create respect for democratic practices. We agree with van der Merwe (2010) that transitional justice should be seen as part of a broader process of change. Note also that transitional justice mechanisms can be manipulated or used to legitimize decisions and policies which are not directed at achieving changes in the social structures or institutions which have caused or facilitated conflict to which the TJMs are a response.69

This is related to how violence is understood: as an extreme event/chain of events, mainly caused by some actors, or as a product of a historical process, which implies a greater responsibility of society as a whole for the abuses that have taken place. Finally, a transitional justice process has to be differentiated from a transitional justice program or project. A TJ programme could include a package of mechanisms or measures, carried out in a limited period of time, with limited resources. There is a danger that when TJ is part of a donor agenda, they are evaluated as single mechanisms that have a specific impact rather than constitute part of a larger process, thus taking them out of the political context in which they develop.

STEP 3: Implementation of TJM and TJM recommendations The first criteria for a transitional justice mechanism to have any impact is that it is actually implemented. We therefore identify concrete outputs in the form of amnesties, verdicts, truth commission report, reparations/payments etc. In doing so, we also look at the degree of completion. In general, are the objectives of the TJM being met? Or are TJ measures set in motion, but stall? For instance, are people sentenced in court but do not serve sentences? Are truth commissions established but reports never issued?

69 Merwe, Hugo van der, Victoria Baxter, and et al. 2009. "Introduction." In Assessing the Impact of Transitional Justice. Challenges for Empirical Research, eds. H. van der Merwe, V. Baxter and A. Chapman. Washington D.C.: United States Institute of Peace Press. 1-11.; Saffon, Maria Paula, and Rodrigo Uprimny. 2007. Uses and Abuses of Transitional Justice in Colombia. Bogota: DeJusticia.


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- Have stated goals been achieved?

As mentioned above, a good start for measuring impact is to check whether a particular mechanism actually fulfils or implements it mandate or not. If stated goals have not been implemented or achieved, it is pertinent to ask why not. Figuering out the “why not’s” may give us valuable insights to intended and non-intended obstacles to the implementation of TJ measures. Here it should also be noted that a particular TJM may have short term (i.e. stated) goals as well as long term (more implicit) goals – as well as unintended consequences. Detailed empirical analysis will allow us to address these complexities in more detail.

- Duration of TJM TJ is often a long process. TJMs are often employed for very different time periods. For instance, truth commissions may work for just a few months or for many years. Trials may be swift (as in the case of Saddam Hussein) or prolonged over several years or even decades (as in the case of Slobodan Milosovic). Since the length of the process is likely to have an impact on how people perceive the mechanism (fair, serious, timely, legitimate, as a farce etc.), we think it is important to not only examine the existence or absence of a given TJM but also how that particular TJM carried out its work or was implemented over time.

- Follow up measures This is especially relevant for truth commissions as they frequently tend to come up with a wide range of recommendations in their reports. Recommendations may include reparations, exhumations, institutional reforms, law revisions, prosecution, documentation centres, memorials etc. Such recommendations will have little relevance or impact if they just remain on paper. We will therefore also analyse to what extent and in which ways recommendations of truth commission reports are followed up and implemented by the government. Note that the issue of follow-up measures adds an important aspect to the time dimension: the work of a truth commission is far from completed when its report has been issued. Some of the complexities that surround truth commissions in particular are illustrated in the Figure 3 below.


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Figure 4: The connections between truth commissions and other transitional justice mechanisms

- How and by whom Finally, the potential impact of a TJM is arguably linked to not only how it is implemented (which is obvious) but also who is in charge of implementing the measure. We would assume that it does matter whether trials are carried out nationally or internationally, whether judges are well trained or considered corrupt etc. Likewise, we expect it to matter whether a truth commission is given few or many resources, who sits on the commission, who is in charge of implementing recommendations etc. etc. The “how” and “why” questions matter for legitimacy, trust, and eventually impact. STEP 4: Assessing overall impact of TJ process on peace and democracy This is the key challenge of our framework. Bearing in mind all the factors above, we propose to evaluate the impact on the TJ process on the larger end goals of democracy and peace in two steps:

- (1) evaluate the achievement of each particular TJM according to their stated goals. Expectation from different actors will be key here (victims, government officials, perpetrators, international community etc).

- (2) try to tie the above achievements (or failures) to how this may have enhanced, or

hampered, the long road to peace and democracy.


34

This will be done by using mixed methods. First, we propose to carry out in-depth qualitative assessment of each individual case, using a wide range of sources. The advantage of comparative qualitative analysis is that we can go into the details and the nuances of assessing the situation in each individual case, not just provide an overall picture of a complex political situation summed up in bare numbers. However, to gain some comparable insights across cases, we propose to supplement a qualitative analysis by checking for some measurements of ‘peace’, ‘democracy’ that have been used by several scholars in the statistical studies referred to earlier in this paper. The two dependent variables in our study are (1) peace and (2) democracy. We suggest three proxies/measurements to capture the essence of each of these two variables:

(1) Peace = violence reduction. a. Repression: CIRI Human Rights Database (used by Kim and Sikkink 2009) b. Human rights situation: Political Terror Scale (PTS) (used by Kim and Sikkink

2009). c. Conflict: PRIO/Uppsala Armed Conflict Data Base (used by Kim and Sikkink

2009).

(2) Democracy = free and fair elections + protection of human rights + rule of law. a. Freedom House Index (FHI), political rights scores b. Human Rights Index (HRI) c. Polity IV

The main point of using these measures is to examine whether there has been an improvement over time (at time of transition/at end point of empirical analysis) along dimensions that are central to our concepts of ‘peace’ and ‘democracy’. Not only will we be able to check the conclusions of a qualitative analysis against hard-number verdicts on our dependent variables that have been assembled by other scholars in the field. This approach will also give a basis for critiquing or confirming reported results on much-used measures such as Polity IV, Freedom House Index etc. Whereas statistical measures by nature always only capture a portion of the complex legal, social and political realities they try to measure, a qualitative analysis may add more depth and shed additional light on the conclusions derived from numerical analysis.


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Table 2: Evaluating the impact of TJ on peace and democracy: A stepwise approach STEP 1

STEP 2

STEP 3

STEP 4

The Conflict

Establishment of TJMs

Implementation of TJMs and of TJM recommendations

Impact of TJMs on peace and democracy

Nature of the Conflict - Ideological - Racial - Ethnic - Identity based - Economic - Socio-economic Length of conflict Type and extent of violations during the conflict Termination of the Conflict - Voluntary resigned (one

party) - Negotiated peace

agreement - Negotiated peace

agreement with international involvement

- Internal negotiated transfer of power

- Invasion by foreign power

Democratic elections/ process after the conflict Change of Power/Regime Balance of power

Types of TJ Mechanisms - Amnesty laws - Amnesties/pardons

(individuals/groups) - Peace agreements - Trials (national) - Trials (hybrid) - Trials (international) - Judgements of international bodies

(for example Inter-American Court of Human Rights)

- Truth Commissions - Commissions of inquiry (for

example Senate Commissions) - Reparations/ indemnification of

victims - Targeted care programs

(implemented by the State) - Vetting - Purging - Informal Justice (local/symbolic) - Memorials - Characteristics of TJ Mechanism - Type of mandate (i.e. look for the

causes of violence or propose institutional changes)

- National Budget/resources allocated to TJ activities

- collaboration from different actors in the conflict

Timing Sequencing TJMs part of a broader process/ an isolated measure Actors - Who created/ordered TJMs - National debates on what went

wrong and what needs to be fixed - (Main) Groups of Victims - Role of civil society org. - National activist network - Links with transnational activist

networks (Root 2009)

Outputs - Amnesties - Verdicts/prison terms - Report/Decisions - Reparations/Payments - Constitutionality issues Degree of completion - Completion of mandate - Meeting of objectives / activities

of TJM’s mandate TC Report/Decisions - Follow-up mechanisms - Recommendations - Dissemination campaigns - Outreach programmes - Parties to the conflict accepted or

supported the TC report/decisions Which TJMs are prioritized from recommendations (collective reparations, individual reparations, trials, institutional reforms, exhumations etc) National Budget (human and economic resources) allocated to implement TJM (and recommendations in case of TC) Support for TJM - (Main) groups of victims,

including main parties in the conflict, support the process/claim that the process was unfair/did not receive what was promised/did not receive justice

Reduction in human rights violations Incorporation of former soldiers/guerrillas into their communities (without aggression) Building of trust between former warring/ conflicting parties Parties of the conflict are incorporated into “democratic mechanisms” (can found political parties, violence not perceived as option in politics) Rule of Law (space for pacific resolution of conflicts) Structural reforms/policy (following up TC recommendations) Public respect for democratic institutions Final evaluation of TJ process


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STEP 1

STEP 2

STEP 3

STEP 4

The Conflict

Establishment of TJMs

Implementation of TJMs and of TJM recommendations

Impact of TJMs on peace and democracy

Context at the end of the Conflict: - Basic economic

indicators - Inequity levels (GINI) - Human rights index

(HDI) - Freedom House Index - State fragility index - Polity IV - Credibility level/ public

trust in armed forces/previous authorities (Root 2009)

Context at the establishment of TJMs: - Public opinion reg. TJMs

(survey/media coverage)

Context at the implementation of TJMs: - Findings of TC discussed with

(main) groups of victims, including main parties in the conflict?

- Information about credibility level/public trust

Context when assessing the impact of TJMs: - Basic economic

indicators - Inequity levels

(GINI) - Human rights index

(HDI) - Freedom House

Index - State fragility index - Polity IV - Credibility

level/public trust in armed forces/previous authorities (Root 2009)


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