My prior post discussed new policy papers on transitional justice issued by the US State Department and US AID. These policy papers reflect the fact that the United States’ support for transitional justice efforts takes many different forms, depending on a range of factors, including pre-existing relationships with key actors and institutions, available resources, the United States’ history in the region, competing equities, and the priorities of influential policymakers. The history and scope of US transitional justice policy in particular countries is discussed in greater detail here and here.
It has been noted that many emerging democracies have high moral capital but low bureaucratic capacity. Accordingly, while post-conflict regimes may enjoy a period of elevated trust and popular support, they may not be well placed to put institutions in place to address and redress the crimes of the past while also working to build an inclusive and just society for the future. There is thus a role for the international community — donor nations, the United Nations, and international non-governmental organizations — to help capacitate local actors with funding and in-kind assistance, offer training and technical assistance, and provide diplomatic support. This engagement can occur with transitioning governments themselves as with civil society organizations and victims’ groups. This post discusses some ways that the United States and others in the international community can help, and have helped, support transitional justice efforts around the globe.
Support for Criminal Trials
There is now a settled expectation that there will be some form of accountability in post-conflict and post-repression societies, including potentially criminal trials. So, the question of whether or not there will be trials has largely been replaced by a more nuanced set of questions concerned with such details as: how, who, where, how many, and when. Depending on the state of the domestic legal framework, indictments post-conflict may include international criminal law charges (e.g., crimes against humanity, torture, or war crimes), domestic criminal law charges (e.g., assault or kidnapping) or substitute charges (e.g., corruption) that may be more feasible politically and that may enjoy a greater political consensus.
Trials are important not only to satisfy retributive impulses or exert a deterrence effect; they also play a vital expressive function by publicly reaffirming essential norms and values and responding to felt needs for justice on the part of victims, their families, and their communities. That said, domestic criminal justice systems have been designed for societies in which violations of the law are the exception and not the rule. When violations become widespread and systematic — involving tens or hundreds of thousands of perpetrators and victims — ordinary criminal justice systems simply cannot cope. So, choices will have to be made, such as the decision in 2004 by Rwanda to launch Gacaca trials given the enormous backlog of cases and the thousands of suspects languishing in over-crowded pre-trial detention. Hence, “the near inevitability of imperfect justice.”
The United States, in partnership with other states and entities in the international community, has supported the prosecution of abuses by standing up and funding international tribunals, hybrid courts, and specialized prosecutorial chambers around the globe. Most recently, the United States provided $1 million to the Extraordinary African Chambers in Senegal, a hybrid institution that recently sentenced Hissène Habré of Chad to life imprisonment. Although international tribunals receive a lot of media and diplomatic attention, in reality, most transitional trials occur before domestic courts. However, and unfortunately, we’ve seen that international tribunals are far better positioned than domestic courts to attract the necessary resources. So, for example, in 1997–2002, international donors contributed $10 million annually in order to support almost 7,000 domestic genocide prosecutions in Rwanda. During this same period, the International Criminal Tribunal for Rwanda (ICTR) consumed a budget of close to $400 million, which resulted in only about a dozen convictions during the same period of time. To be sure, the ICTR made important contributions by prosecuting those most responsible for the genocide and developing international criminal law, but it did not necessarily contribute directly to the instantiation of the rule of law in Rwanda, especially given that it was located extraterritorially.
In addition to direct funding, the international community can help with technical assistance and with ensuring defendants and victims receive due process. States can contribute substantively by sharing intelligence, such as satellite imagery showing the location of mass graves or information establishing the responsible chain of command and order of battle. International advisors can help capacitate prosecutorial efforts and design an effective prosecutorial strategy, as we’ve seen with the International Commission Against Impunity in Guatemala. The international community can also inspire and fund documentation and evidence preservation efforts while abuses are ongoing (such as the Commission on International Justice, which is gathering information on crimes being committed in Syria); establish and contribute to witness protection programs; and support and defend local actors who may be subjected to considerable political pressure.
NGOs with international assistance can conduct trial monitoring to ensure procedural fairness and to help inoculate courts against political interference or temper over-zealous prosecutions. Donors can also help manage the second order impacts of trials, such as by enabling public outreach to, and dialogue in, affected communities. They can also assist with legal reform efforts by drawing from international jurisprudence and comparative law to draft new criminal law and criminal procedure statutes as needed and by training judges and lawyers.
Government officials can also provide diplomatic support to trials. The visit by the US Ambassador to Guatemala, Arnold Chacón, and the US Ambassador at Large for War Crimes Issues, Stephen Rapp, to the genocide trials in Guatemala signaled US support for these efforts, helped to protect the prosecutors and judges from potential intimidation or retaliation, and brought attention to the importance of judicial independence and transparency. (These visits also generated some ambivalent press, it should be noted, implying that the trials were being orchestrated from outside and calling attention to the fact that the United States had supported the Ríos Montt regime at the time it was in power.)
Support for Truth Commissions
Trials cannot accomplish everything when it comes to reckoning with a past history of violence. There are many other ways that societies can translate widespread knowledge that human rights abuses have occurred into formal acknowledgement that rights were violated and crimes were committed. Truth commissions first emerged in Latin America as a second best option when criminal trials were foreclosed by the passage of blanket amnesty laws. Over time, however, we learned that truth commissions have merit in and of themselves and can make unique contributions to a post-transition society. At base, truth commissions can give expression to the emerging right to truth. Establishing an official truth about a brutal past can help inoculate future generations against revisionism; empower citizens to recognize and resist a return to abusive practices; give voice to victims; and delegitimize lies that might be told about the causes and consequences of violence. All of this can, in turn, lay the groundwork for institutional reforms. In Latin America, where violence was characterized by forced disappearances followed by official denials, truth commissions helped to bring closure to the families of victims by revealing the circumstances of the disappearance and the whereabouts of the victims’ remains.
In other societies, truth commissions have been employed to enable perpetrators to accept responsibility for their actions and seek forgiveness or to create a shared historical memory that will protect against the emergence of multiple, sectarian, or revisionist narratives. The East Timor Commission for Reception, Truth and Reconciliation (CAVR in Portuguese) was particularly innovative in promoting the reintegration of low-level perpetrators by allowing them to disclose their crimes and undertake an act of reconciliation (which often included community service) as a precondition to escaping criminal liability for their crimes.
Such acknowledgements of responsibility by perpetrators can help to lay the groundwork for reconciliation between embattled groups. In some contexts (and particularly where violence was asymmetrical), victims oppose the idea of “reconciliation” because of its association with impunity, amnesia, and forced forgiveness. Those responsible for the commission of international crimes may cynically champion the concept of reconciliation in order to evade responsibility and pressure victims to abandon claims for redress. That said, transitional societies must address the grievances and animosities that inspired past acts of violence or they will simply lay the groundwork for future hostilities.
Truth commissions have been convened around the globe, often with international involvement to ensure the credibility, impartiality, and independence of the process. The international community can help stand up truth commissions (via staffing, the provision of commissioners, etc.) and provide various forms of technical assistance, including the design of databases for the amassed documentation or forensic expertise to exhume mass graves. International experts can assist by framing the mandate of the commission to ensure that it is as robust as possible and to implement recommendations around institutional reform, reparations, etc. Particular states can also facilitate the participation of members of the relevant diaspora, as happened with respect to Liberians located in the United States, who were able to give their testimony to the Commission.
Support for Victims’ Reparations
The emerging legal duty to provide some sort of reparation to victims of international crimes can be discharged in many different ways, including through the provision of material assistance (e.g., everything from compensation payments to scholarships to the children of victims), medical or psycho-social rehabilitation (e.g., trauma counseling or the fitting of prosthetics), and symbolic measures (e.g., the erection of monuments or national days of remembrance). Reparations can be individual or collective; monetary or symbolic. They can be ordered by a court as a damage award following the trial of an individual perpetrator or disbursed en masse by the state through an administrative program.
The formulation of a comprehensive reparation policy is at once technically complex and politically delicate. Mass violence may leave multiple categories of victim in its wake with different needs and priorities, including
- victims of physical or sexual violence;
- victims of discrimination or property crimes;
- child soldiers; and
- victims of more systemic institutional repression or violence.
The challenge, of course, is that most transitional governments suffer from weak economies, endemic poverty, and a legacy of neglect vis-à-vis large swaths of the population. The prospect of cash payments may threaten to overtax the coffers of a regime that is already struggling financially. These realities have heralded a turn to developing concepts of collective reparations, such as the establishment of schools, scholarships, job training, medical care, and other forms of social investment. In addition, reparations can take the form of the restitution of property and the resolution of property claims, particularly when there have been episodes of ethnic cleansing and property may be occupied by potentially innocent third parties.
It should be noted that as reparations become more collective and less tied to the experience of individual victims, affected communities may object to such outlays on the grounds that governments are supposed to build schools and roads as a matter of course, so such activities should not discharge states’ obligations to also pay reparations to victims.
There are many ways that the international community can encourage and enable fair and effective reparations programs, including at the institutional design phase. The international community can also contribute to the rehabilitation of victims through the provision of medical and psycho-social assistance for post-traumatic stress disorder and related sequelae of human rights abuses. It can also freeze and seize assets in order to provide funds for civil judgments or reparations programs.
Members of the international community can also make contributions to the international Trust Fund for Victims, which helps to implement reparations ordered by the International Criminal Court and also provide general assistance to victim communities in ICC situation countries. When the United Kingdom held the presidency of the G-8 (now G-7) in 2013, it encouraged other members to donate directly to the Trust Fund as a major component of its Preventing Sexual Violence Initiative (PSVI). The United Kingdom itself has donated over £1 million to the Trust Fund.
Support for Lustrations
Lustration involves the removal or barring of human rights abusers and officials of a prior regime from positions of trust and responsibility in order to establish or restore the integrity of political institutions. In this way, vetting can establish a form of non-criminal accountability for human rights abuses, particularly in contexts in which it is impossible to prosecute all those who might be deemed responsible. As such, lustration can be both retributive and preventative. Relatedly, where armed state actors were involved in the violence, Disarmament, Demobilization and Reintegration (DDR) programs may be an essential part of any post-conflict transitional justice strategy.
Lustrations offer several advantages: Because they are not burdened by the rules of criminal procedure, they can process large numbers of cases quickly; they cost far less than trials; and they present a measured response, allowing the less culpable to evade criminal charges. At the same time, vetting programs must protect the due process rights of persons under scrutiny because such administrative remedies carry an acute risk of unfairness if they are over-broad. As was seen with the de-Baathification of Iraq, lustrations can also leave competency vacuums; a judicious approach to lustration coupled with training programs can help to ensure that there are capable individuals who can fill open slots. The international community can assist with making sure that any vetting program is proportional and takes into account former officials’ human rights protections. International donors can also withhold aid to security forces and other institutions that are associated with abuses along the lines of the “Leahy vetting” undertaken in the United States.
Support for the Memorialization of Victims
Memorials and other sites of memory or conscience can be an important part of any transitional justice program — there are times when societies may benefit from more art and less law. Memorials and other forms of artistic expression honor the victims — both living and dead — and commemorate the struggle to achieve peace and democracy. They can also contribute to healing and reconciliation.
Memorials can be sponsored by the state or arise more organically from the grassroots to commemorate local violence and venerate local victims, such as the many genocide memorials around Cambodia and Rwanda. Many memorials involve re-purposing institutions associated with abuses, such as Tuol Sleng (S-21) prison in Cambodia or Robben Island in South Africa. The international community can assist with design competitions and funding.
Although there are many ways the international community can support such efforts, any process of memorialization — as with all transitional justice efforts — should be consultative and responsive to the sensibilities of all victims, including women, minorities, children, etc.
Support for Institutional Reforms
Many truth commissions are empowered to make recommendations in their final reports regarding legal, administrative, and institutional reform measures. Following a period of widespread conflict or human rights abuse, it is vital to reform state institutions so that citizens’ trust is restored and there are protections in place against a recurrence of violence or repression. This is the daily work of many development agencies and funders, but in a transitional period, it might be necessary to adapt this work to bring it within a transitional justice framework.
Other forward-looking options include programs to combat corruption and encourage good governance. Members of the international community can also encourage the establishment of human rights ombudsmen or national human rights commissions to provide an internal watchdog and promote the ratification of human rights treaties to create new binding commitments going forward.