Confronting Past Human Rights Violations

Chandra Lekha Sriram

• Publisher: Routledge
• Year: 2004
• ISBN:
  9781135768195
• Edition: 1
• Topic: History
• Subtopic: Military & Maritime History
• Index: History

This book examines what makes accountability for previous abuses more or less possible for transitional regimes to achieve. It closely examines the other vital goals of such regimes against which accountability is often balanced. The options available are not simply prosecution or pardon, as the most heated polemics of the debate over transitional justice suggest, but a range of options, from complete amnesty through truth commissions and lustration or purification to prosecutions. The question, then, is not whether accountability can be achieved, but what degree of accountability can be achieved by a given country.

1
What makes accountability possible?

Introduction

The debate over ‘law and lustration’ or the treatment of wrongdoers by successor (often democratic) state regimes has focused on the relative merits of prosecution, amnesty and truth commissions. However, this literature largely focuses on desirable outcomes and what is sacrificed given significant state and/ or military opposition to any or all of these measures.¹ Few studies have considered the preconditions under which these measures become more feasible. In this chapter, I set forth factors that I hypothesize affect the outcome that can be attained. I also address strategies of transition that may be adopted both by transitional states and by the international community, and which are informed by my discussion of the previously discussed factors.

Accountability outcomes can be seen, in one sense, as a function of will and capacity. A sheer desire by many to see justice done following a regime change may not make it occur, given practical obstacles like, say, a strong military. On the other hand, there may be cases where, even though the military is no longer an obstacle, there are powerful reasons not to pursue full-scale accountability, for example, because vast sections of society are implicated in the abuses. My goal, here, is to spell out what limits or enables new regimes in the pursuit of accountability: what are political obstacles, and for what other reasons might they choose to forgo justice? Alternatively, what steps can be taken to enhance the degree of accountability achievable?

In this chapter, I develop the hypotheses that the following factors affect the degree to which accountability can be attained:

• the level/nature of international involvement,
• the balance of forces between the rulers and civilian/guerrilla opposition, and
• the nature of past human rights abuses, repression and/or civil strife.

This mode of analysis is temporally prior to the more common emphasis on ‘transition type’ and, I argue, more sensitive to differences among cases. However, this is not simply a deterministic analysis: while the factors I set forth may set the parameters of state action, there are strategies that states can employ to achieve more accountability or, if they prefer, to achieve greater reform to prevent future abuses. I argue that states will end up in a delicate balancing act, trading off the goods of accountability, and the reform and the reduction of security forces against each other in most cases.

The dilemma

A specific dilemma drives case selection: the concern here is the actions of successor regimes dealing with previous human rights abuses in the face of recalcitrant elements of the government or the military. In these instances, there has been a precarious transition, and the military often still commands great power. Governments are faced with the demands of victims and their families, as well as domestic and/or international human rights organizations and other external groups, to prosecute such perpetrators. However, they know that while such actions would satisfy many, and lend legitimacy to the nascent regime, powerful officials and generals could feel so threatened that they would be provoked to seize power. Therefore, governments face this putative dilemma: they must choose between ‘peace’ and ‘justice’. There is a range of measures from which they can choose: from the strongest, prosecution, through truth commissions, to the least strong, amnesty for perpetrators.

The existing literature

Much of the existing literature on justice in transitional states consists of case studies documenting the choices that governments have made, and following closely their implementation or non-implementation, and their outcomes. These studies often treat rather well the agonizing choices faced by successor regimes, and the compromises democratic regimes may make with holdover militaries in particular. One can find any number of typologies of measures that may be taken, and analysis of the merits of each. What seems to be missing, however, is an analysis of the forces that drive these outcomes.

A key foundation for examining the ways that transitional regimes behave with regard to human rights violations is an understanding of the larger context of democratization itself. Therefore, it is useful to turn to the democratization literature, in particular that of Samuel Huntington with regard to the ‘third wave’ of democratization in the late 1980s and 1990s.

The literature on democratization, and on transitional justice more generally, has emphasized the impact of the nature of the transition from authoritarianism on the range of options that the new government has.² While this observation is useful, I suggest that the nature of the transition is a mediating factor, a product of the variables I discuss below, as well as a factor in the outcomes of interest to this study. Here, I briefly discuss the literature on transition types, and discuss its relation to my hypotheses.

Huntington articulates four transition types: transformation, transplacement, replacement and intervention. He suggests that the level of accountability will range from minimal in transformations, which are initiated by the old regimes, to substantial in replacements and interventions. In Chapter 2 I categorize a larger number of countries’ experiences using some of his typology, so it bears brief examination here.

According to Huntington, the least amount of accountability will be achieved in situations of transformation from above, where ‘those in power in an authoritarian regime take the lead and play the decisive role in ending that regime and changing it into a democratic system’.³ Slightly more accountability will be achieved in a transplacement, where ‘democratization is produced by the combined actions of government and opposition’; while the status quo elements aren’t willing to initiate change, they will ultimately recognize the need to negotiate it.⁴ Replacement occurs when the old regime is ultimately replaced by the opposition through a struggle, frequently coup or civil war; here accountability, according to Huntington, is particularly feasible.⁵ Finally, interventions by external forces may bring about a change in regime and in regime type; as I explain below, for our purposes here they can be placed into an aggregate category, ‘effective overthrow’, with replacements.

It should now be apparent that, while transition type is important, we must begin our inquiry at the stage before the transition, and understand the balances of power between civilian and military, government and opposition, as well as international factors. It is these factors that truly affect accountability, although the nature of the transition is an important, and visible, mediating factor.

Given the presence of strong demands for accountability, what are the factors that affect which measures are actually selected? Little extant work seeks to specify the conditions, and most of it does not systematically operationalize them.⁶

Factors affecting accountability

I argue that the relevant factors to be considered are:

1. the protractedness and intensity of the prior conflict or abuses, in other words the nature and extent of repression, rights abuses and the impact of war;
2. the prior state of civil-military relations, as well as subsequent reform; and
3. the effect of international factors and politics on the peace/justice process.

First, the nature of human rights violations. Ex ante, it would appear that a long and bloody conflict could contribute to the prosecution of crimes, or hinder them. Certainly the desire for justice on the part of the victims could increase with the aggregation of abuses;⁷ on the other hand, exhaustion from the conflict could lead many to compromise with former abusers and grant amnesty. Thus the number of years the conflict endured and the casualties incurred matters, but the nature of violations also matters: disappearances and torture have different psychological, social and political effects from killings where the location of the dead is acknowledged or detentions that do not result in deaths.

A related issue is the strength of domestic opposition/guerrilla groups. This would, clearly, have an effect on the protractedness of a conflict, but the presence of an alternative centre of power can be expected to influence outcomes in its own right. The relative strengths of governments and opposition movements are better dealt with in the next category, civil-military relations, which may be cast as a larger category dealing with the ‘balance of forces’.

Next, civil-military relations and the ‘balance of forces’. It seems obvious that where a military establishment has kept a civilian government subordinate, or where the government was a military one, the transition and prosecutions will be more difficult, since the perpetrators will be in possession of the power to halt change. Similarly, the degree to which a military has reformed may affect the degree of justice possible, though this factor is at least partially contingent upon the former nature of civil-military relations. Justice may be limited generally where the military has penetrated civil society and civilian political life. Furthermore, military reform and the pursuit of justice may be traded off against one another. The corporate interests of the military are likely to be protected in at least one of three aspects: the protection of members from prosecution, the maintenance of large military budgets, and the defence of institutional prerogatives.⁸ Progress may be achieved on one or two, but probably not all three, of these areas. I discuss these ‘strategies of transition’ below.

The relative strengths of government and opposition/guerrilla groups will be important, as they will affect the amount of leverage each has in a transition, negotiated or otherwise. While much attention has been paid to the role of military opposition, civilian opposition should not be discounted. In many countries opposition was led by political parties, or human rights NGOs, or church groups, placing pressure at pivotal moments on repressive regimes.

Finally, international/external factors. Not only international involvement in a conflict and its resolution, but also shifts in the structure of international politics, may affect the nature of transitions. It may be the case that international factors are permissive of or more directly manipulative of regime change.⁹ Regimes may change because the external environment has changed (for example, a patron ceases to support a repressive regime), in part as a result of shifting norms, or examples set by neighbours, in response to pressure such as aid conditionality, or because of the forces of transnational non-state actors. While permissive conditions are certainly important in that they create unique historical opportunities for change, they cannot frequently be created; thus my discussion of strategies of transition focuses only on those international factors that seem more manipulable. I touch only briefly on the permissive conditions that were perhaps especially important in the so-called ‘third wave’ of democratization.

Broad shifts in international politics, in particular the end of the Cold War, affected a number of transitional states: many repressive regimes lost guarantees of external support, and in the former Soviet bloc the threat that the Soviet Union would intervene to quash liberalization was removed. Conversely, the vanishing of the Soviet threat, real or perceived, altered US policies towards states under its influence.

Another external factor that undoubtedly played an enabling role is what is sometimes referred to as the ‘human rights revolution’. The proliferation of NGOs, both domestic and international, as well as the increase in numbers of conventions on rights and signatories to them, as well as United Nations, (UN), European Union (EU) and Organization of American States (OAS) bodies monitoring and occasionally enforcing these rights can be said to have changed the environment in which state actors worked. While the Co...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Preface
• Acknowledgements
• List of Abbreviations
• Introduction Truth, Justice, and Accountability
• 1: What Makes Accountability Possible?
• 2: Global Experiences In Transitional Justice
• 3: El Salvador ‘Negotiated Revolution’ and the Truth Commission
• 4: Argentina Struggle for Accountability
• 5: Honduras Justice In Semi-transition
• 6: South Africa the Exchange of Truth for Justice
• 7: Sri Lanka Justice In the Midst of War
• Conclusion Compromises of Transition
• Bibliography