Truth commissions, trials - or nothing? Policy options in democratic transitions

Third World Quarterly

Volumn 20, Issue 6, 1999, Pages 1109-1128

  Skaar, Elin ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

DEMOCRATIC TRANSITION; HUMAN RIGHTS;

EID: 0033401922     PISSN: 01436597     EISSN: None     Source Type: Journal    
DOI: 10.1080/01436599913316     Document Type: Article

References (59)

1. SP Huntington, The Third Wave: Democratization in the Late Twentieth Century, Cambridge: Cambridge University Press, 1991, p 231.
2. See TL Karl & Schmitter, 'Modes of transition in Latin America, Southern and Eastern Europe', International Social Science Journal, 128, 1991, pp 269-289; and G O'Donnell, 'Introduction to the Latin American cases' in G O'Donnell, PC Schmitter & L Whitehead (eds), Transitions From Authoritarian Rule: Latin America, Vol 2, Baltimore, MA: John Hopkins University Press, 1986.
3. See TL Karl & Schmitter, 'Modes of transition in Latin America, Southern and Eastern Europe', International Social Science Journal, 128, 1991, pp 269-289; and G O'Donnell, 'Introduction to the Latin American cases' in G O'Donnell, PC Schmitter & L Whitehead (eds), Transitions From Authoritarian Rule: Latin America, Vol 2, Baltimore, MA: John Hopkins University Press, 1986.
4. RA Mayorga, 'Democracy dignified and an end to impunity: Bolivia's military dictatorship on trial', and JC Sutil, '"No victorious army has ever been prosecuted . . ." the unsettled story of transitional justice', both in JA McAdams (ed), Transitional Justice and the Rule of Law in New Democracies, Notre Dame, IN: University of Notre Dame Press, 1997, pp 61-92, 123-154, respectively; and B Walsh, 'Resolving the human rights violations of a previous regime', World Affairs, 158(3), 1996, pp 111-135.
5. RA Mayorga, 'Democracy dignified and an end to impunity: Bolivia's military dictatorship on trial', and JC Sutil, '"No victorious army has ever been prosecuted . . ." the unsettled story of transitional justice', both in JA McAdams (ed), Transitional Justice and the Rule of Law in New Democracies, Notre Dame, IN: University of Notre Dame Press, 1997, pp 61-92, 123-154, respectively; and B Walsh, 'Resolving the human rights violations of a previous regime', World Affairs, 158(3), 1996, pp 111-135.
6. RA Mayorga, 'Democracy dignified and an end to impunity: Bolivia's military dictatorship on trial', and JC Sutil, '"No victorious army has ever been prosecuted . . ." the unsettled story of transitional justice', both in JA McAdams (ed), Transitional Justice and the Rule of Law in New Democracies, Notre Dame, IN: University of Notre Dame Press, 1997, pp 61-92, 123-154, respectively; and B Walsh, 'Resolving the human rights violations of a previous regime', World Affairs, 158(3), 1996, pp 111-135.
7. Huntington, The Third Wave.
8. See PB Hayner, 'Fifteen truth commissions - 1974 to 1994: a comparative study', Human Rights Quarterly, 16(4), 1994, pp 597-655; and D Bronkhorst, Truth and Reconciliation, Obstacles and Opportunities for Human Rights, Amsterdam: Amnesty International Dutch Section, 1995.
9. See PB Hayner, 'Fifteen truth commissions - 1974 to 1994: a comparative study', Human Rights Quarterly, 16(4), 1994, pp 597-655; and D Bronkhorst, Truth and Reconciliation, Obstacles and Opportunities for Human Rights, Amsterdam: Amnesty International Dutch Section, 1995.
10. For a thorough discussion, see A Przeworski, Democracy and the Market: Political and Economic Reform in Eastern Europe and Latin America, Cambridge: Cambridge University Press, 1991.
11. For different views on elite-focused transition theory, see W Hunter, 'Negotiating civil - military relations in post-authoritarian Argentina and Chile', International Studies Quarterly, 42(2), 1998, pp 295-317; Karl & Schmitter, 'Modes of transition in Latin America, Southern and Eastern Europe'; O'Donnell, 'Introduction to the Latin American Cases'; and Przeworski, Democracy and the Market.
12. For different views on elite-focused transition theory, see W Hunter, 'Negotiating civil - military relations in post-authoritarian Argentina and Chile', International Studies Quarterly, 42(2), 1998, pp 295-317; Karl & Schmitter, 'Modes of transition in Latin America, Southern and Eastern Europe'; O'Donnell, 'Introduction to the Latin American Cases'; and Przeworski, Democracy and the Market.
13. For different views on elite-focused transition theory, see W Hunter, 'Negotiating civil - military relations in post-authoritarian Argentina and Chile', International Studies Quarterly, 42(2), 1998, pp 295-317; Karl & Schmitter, 'Modes of transition in Latin America, Southern and Eastern Europe'; O'Donnell, 'Introduction to the Latin American Cases'; and Przeworski, Democracy and the Market.
14. For different views on elite-focused transition theory, see W Hunter, 'Negotiating civil - military relations in post-authoritarian Argentina and Chile', International Studies Quarterly, 42(2), 1998, pp 295-317; Karl & Schmitter, 'Modes of transition in Latin America, Southern and Eastern Europe'; O'Donnell, 'Introduction to the Latin American Cases'; and Przeworski, Democracy and the Market.
15. It is a sad fact that the disappearance or murder of individual prominent left-wing politicians or foreigners has frequently solicited a great deal more national and international attention than have the massacres of hundreds of poor indigenous peasants in remote rural areas.
16. See, for example, A Brysk, 'The politics of measurement: the contested count of the disappeared in Argentina', Human Rights Quarterly, 16(4), 1994, pp 676-692.
17. A natural objection could be made against treating the outgoing regime, the public and the incoming regime as 'unitary actors'. In real life, of course, there will be internal splits, conflicting demands and opposing policy preferences within each of these 'unitary actors'. For instance, there may be tension between hard-liners and soft-liners within the military; tension between those among the public who supported the outgoing regime and those who favour the new democratic government; or tension between the executive, legislative and judicial branches of the government. Yet the government (ie the executive) will have to make an assessment of the intensity and credibility of all these conflicting demands and the potential costs involved in not complying with them. Although policy preferences exist on a continuum, I argue that it is still analytically useful to distinguish between a strong and a weak military, a strong or a weak human rights movement, or an executive which supports or opposes a given human rights policy.
18. Note the potential conflict between the aims of truth, justice and reconciliation. Establishing the 'truth' may require offering amnesty to the violators in exchange for information, which precludes justice in the form of prosecution. Some scholars believe that reconciliation is best achieved through amnesty and truth commissions whereas justice is best achieved through reparations and prosecution. Yet these relationships have been hotly contested. It is inevitable that society may not always demand both truth and justice. However, I assume that the demand for justice is a politically more sensitive claim than the demand for truth because the risk involved in the prosecution of perpetrators (that is sanctions in form of a coup) is arguably higher than disclosing the facts about the violations. For a debate on how truth and justice may affect the prospects for reconciliation, see D Bronkhorst, Truth and Reconciliation; N Kritz (ed), Transitional Justice. How Emerging Democracies Reckon With Former Regimes, Vols I-III, Washington, DC: United States Institute of Peace Press, 1995; and J Zalaquett, 'Balancing the ethical imperatives and political constraints: the dilemma of new democracies confronting past human rights', Hastings Law Journal, 43(6), 1992, pp 1426-1432.
19. Note the potential conflict between the aims of truth, justice and reconciliation. Establishing the 'truth' may require offering amnesty to the violators in exchange for information, which precludes justice in the form of prosecution. Some scholars believe that reconciliation is best achieved through amnesty and truth commissions whereas justice is best achieved through reparations and prosecution. Yet these relationships have been hotly contested. It is inevitable that society may not always demand both truth and justice. However, I assume that the demand for justice is a politically more sensitive claim than the demand for truth because the risk involved in the prosecution of perpetrators (that is sanctions in form of a coup) is arguably higher than disclosing the facts about the violations. For a debate on how truth and justice may affect the prospects for reconciliation, see D Bronkhorst, Truth and Reconciliation; N Kritz (ed), Transitional Justice. How Emerging Democracies Reckon With Former Regimes, Vols I-III, Washington, DC: United States Institute of Peace Press, 1995; and J Zalaquett, 'Balancing the ethical imperatives and political constraints: the dilemma of new democracies confronting past human rights', Hastings Law Journal, 43(6), 1992, pp 1426-1432.
20. Note the potential conflict between the aims of truth, justice and reconciliation. Establishing the 'truth' may require offering amnesty to the violators in exchange for information, which precludes justice in the form of prosecution. Some scholars believe that reconciliation is best achieved through amnesty and truth commissions whereas justice is best achieved through reparations and prosecution. Yet these relationships have been hotly contested. It is inevitable that society may not always demand both truth and justice. However, I assume that the demand for justice is a politically more sensitive claim than the demand for truth because the risk involved in the prosecution of perpetrators (that is sanctions in form of a coup) is arguably higher than disclosing the facts about the violations. For a debate on how truth and justice may affect the prospects for reconciliation, see D Bronkhorst, Truth and Reconciliation; N Kritz (ed), Transitional Justice. How Emerging Democracies Reckon With Former Regimes, Vols I-III, Washington, DC: United States Institute of Peace Press, 1995; and J Zalaquett, 'Balancing the ethical imperatives and political constraints: the dilemma of new democracies confronting past human rights', Hastings Law Journal, 43(6), 1992, pp 1426-1432.
21. Though a poorly defined term in the literature, 'democratic consolidation' has frequently been linked both to democratic stability and democratic institutionalisation. Adam Przeworski defines a democracy as consolidated when 'a particular system of institutions becomes the only game in town'. See A Prezeworski, Democracy and the Market, p 26. Guillermo O'Donnell's more comprehensive definition includes procedural democracy (Robert Dahls' term polyarchy), democratisation of central institutions, development of a democratic culture, democratisation of social relations and separation of the public and private spheres. See G O'Donnell, 'Transition, continuities and paradoxes', in S Mainwaring et al (eds), Issues in Democratic Consolidation: The New South American Democracies in Comparative Perspective, Notre Dame, IN: University of Notre Dame Press, 1992, pp 48-49.
22. Though a poorly defined term in the literature, 'democratic consolidation' has frequently been linked both to democratic stability and democratic institutionalisation. Adam Przeworski defines a democracy as consolidated when 'a particular system of institutions becomes the only game in town'. See A Prezeworski, Democracy and the Market, p 26. Guillermo O'Donnell's more comprehensive definition includes procedural democracy (Robert Dahls' term polyarchy), democratisation of central institutions, development of a democratic culture, democratisation of social relations and separation of the public and private spheres. See G O'Donnell, 'Transition, continuities and paradoxes', in S Mainwaring et al (eds), Issues in Democratic Consolidation: The New South American Democracies in Comparative Perspective, Notre Dame, IN: University of Notre Dame Press, 1992, pp 48-49.
23. This convincing argument is presented by W Hunter, 'Negotiating civil-military relations in post-authoritarian Argentina and Chile'.
24. For a discussion of a wide range of policy options in the field of human rights, including reparation of various sorts, see B Walsh, 'Resolving the human rights violations of a previous regime', World Affairs, 158(3), 1996, pp 111-135.
25. Also, such commissions exist temporarily for a predefined period of time and cease to exist when they have reported their findings. They are usually vested with special authority by their sponsors (ie the president or other high official) that allows them access to information, security or protection to dig into sensitive issues. These characteristics are largely based on Hayner's classic definition of truth commissions. See PB Hayner, 'Fifteen truth commissions'.
26. These figures are estimated on the basis of information given by M Bratton & N van de Walle, Democratic Experiments in Africa: Regime Transitions in Comparative Perspective, Cambridge: Cambridge University Press, 1997; Hayner, 'Fifteen truth commissions'; and Huntington, The Third Wave. It may, of course, be argued that the remaining two-thirds of the countries did not have severe enough human rights abuses to warrant truth commissions or trials. We do indeed expect the likelihood of punishment to increase with the severity of human rights abuses. This argument could be tested if reliable data on human rights violations could be found for all countries going through democratic transition in the period we are interested in. However, such a test is beyond the scope of this paper.
27. These figures are estimated on the basis of information given by M Bratton & N van de Walle, Democratic Experiments in Africa: Regime Transitions in Comparative Perspective, Cambridge: Cambridge University Press, 1997; Hayner, 'Fifteen truth commissions'; and Huntington, The Third Wave. It may, of course, be argued that the remaining two-thirds of the countries did not have severe enough human rights abuses to warrant truth commissions or trials. We do indeed expect the likelihood of punishment to increase with the severity of human rights abuses. This argument could be tested if reliable data on human rights violations could be found for all countries going through democratic transition in the period we are interested in. However, such a test is beyond the scope of this paper.
28. These figures are estimated on the basis of information given by M Bratton & N van de Walle, Democratic Experiments in Africa: Regime Transitions in Comparative Perspective, Cambridge: Cambridge University Press, 1997; Hayner, 'Fifteen truth commissions'; and Huntington, The Third Wave. It may, of course, be argued that the remaining two-thirds of the countries did not have severe enough human rights abuses to warrant truth commissions or trials. We do indeed expect the likelihood of punishment to increase with the severity of human rights abuses. This argument could be tested if reliable data on human rights violations could be found for all countries going through democratic transition in the period we are interested in. However, such a test is beyond the scope of this paper.
29. For a discussion of their criteria defining truth commissions, see D Bronkhorst, Truth and Reconciliation; and Hayner, 'Fifteen truth commissions'.
30. For a discussion of their criteria defining truth commissions, see D Bronkhorst, Truth and Reconciliation; and Hayner, 'Fifteen truth commissions'.
31. For good accounts of the lustration processes in Czechoslovakia, Poland, Hungary and Bulgaria, see, for example, D Bronkhorst, Truth and Reconciliation; Kritz, Transitional Justice; and McAdams, Transitional Justice and the Rule of Law in New Democracies.
32. For good accounts of the lustration processes in Czechoslovakia, Poland, Hungary and Bulgaria, see, for example, D Bronkhorst, Truth and Reconciliation; Kritz, Transitional Justice; and McAdams, Transitional Justice and the Rule of Law in New Democracies.
33. For good accounts of the lustration processes in Czechoslovakia, Poland, Hungary and Bulgaria, see, for example, D Bronkhorst, Truth and Reconciliation; Kritz, Transitional Justice; and McAdams, Transitional Justice and the Rule of Law in New Democracies.
34. In Table 2 I have excluded four of the bodies defined as truth commissions by Hayner, 'Fifteen truth commissions', because they were not created to investigate abuses of the past authoritarian regime. These are the committee set down by Amin in Uganda (1977) to investigate abuses carried out by his own military; the two ANC commissions set down in South Africa (1992 and 1993) to look into human rights violations carried out by its own members; and the commission set down by Mugabe in Zimbabwe (1993) to investigate the Matabele killings. I have also excluded the commission formed by the Office of the Special Prosecutor in Honduras in 1993 under a civilian government to investigate abuses carried out under another civilian government (in power from 1980-93), as this does not comply with the criteria of regime transition. I have, though, defined the Brazilian commission sponsored by the Catholic Church and the World Council of Churches as a truth commission because it has much in common with the commission set up by Servicio de Paz y Justicia (Service for Peace and Justice (SERPAJ) in Uruguay. Also, I have included the recent truth commissions in South Africa and Guatemala.
35. Two classic accounts of this type of transition theory are found in Karl & Schmitter, 'Modes of transition in Latin America, Southern and Eastern Europe'; and G O'Donnell, 'Transition, continuities and paradoxes'.
36. Two classic accounts of this type of transition theory are found in Karl & Schmitter, 'Modes of transition in Latin America, Southern and Eastern Europe'; and G O'Donnell, 'Transition, continuities and paradoxes'.
37. For the African cases, see Bratton & van de Walle, Democratic Experiments in Africa. For the Eastern European cases, see Huntington, The Third Wave.
38. For the African cases, see Bratton & van de Walle, Democratic Experiments in Africa. For the Eastern European cases, see Huntington, The Third Wave.
39. Terry Lynn Karl and Philippe C. Schmitter define "pacts' as "negotiated compromises in which contending forces agree to forego their capacity to harm each other by extending guarantees not to threaten each other's interests'. See Karl & Schmitter, 'Modes of transition in Latin America, Southern and Eastern Europe,' p 281. here use 'pact' in a slightly broader sense, which incorporates Huntington's partly overlapping terms of transformation and transplacement. See Huntington, The Third Wave, pp 121-151. Since terminology varies widely. I have used the different four-mode categories employed by Karl & Schmitter and Huntington above and by Bratton & van de Walle, Democratic Experiments in Africa, respectively to create two broad categories: pact and collapse. I have added peace agreement as a third category to account for transitions brokered by an external power. The corresponding classifications are: Mine Karl & Schmitter Huntington Bratton & van de Walle Pacted = pact = transformation/transplacement = pact Collapse = imposition = replacement = rapid elections Peace agreement = - = intervention = -
40. Terry Lynn Karl and Philippe C. Schmitter define "pacts' as "negotiated compromises in which contending forces agree to forego their capacity to harm each other by extending guarantees not to threaten each other's interests'. See Karl & Schmitter, 'Modes of transition in Latin America, Southern and Eastern Europe,' p 281. here use 'pact' in a slightly broader sense, which incorporates Huntington's partly overlapping terms of transformation and transplacement. See Huntington, The Third Wave, pp 121-151. Since terminology varies widely. I have used the different four-mode categories employed by Karl & Schmitter and Huntington above and by Bratton & van de Walle, Democratic Experiments in Africa, respectively to create two broad categories: pact and collapse. I have added peace agreement as a third category to account for transitions brokered by an external power. The corresponding classifications are: Mine Karl & Schmitter Huntington Bratton & van de Walle Pacted = pact = transformation/transplacement = pact Collapse = imposition = replacement = rapid elections Peace agreement = - = intervention = -
41. Terry Lynn Karl and Philippe C. Schmitter define "pacts' as "negotiated compromises in which contending forces agree to forego their capacity to harm each other by extending guarantees not to threaten each other's interests'. See Karl & Schmitter, 'Modes of transition in Latin America, Southern and Eastern Europe,' p 281. here use 'pact' in a slightly broader sense, which incorporates Huntington's partly overlapping terms of transformation and transplacement. See Huntington, The Third Wave, pp 121-151. Since terminology varies widely. I have used the different four-mode categories employed by Karl & Schmitter and Huntington above and by Bratton & van de Walle, Democratic Experiments in Africa, respectively to create two broad categories: pact and collapse. I have added peace agreement as a third category to account for transitions brokered by an external power. The corresponding classifications are: Mine Karl & Schmitter Huntington Bratton & van de Walle Pacted = pact = transformation/transplacement = pact Collapse = imposition = replacement = rapid elections Peace agreement = - = intervention = -
42. The cases are sorted according to (1) the type of policy adopted by the democratic government; (2) the type of transition; (3) the year of regime change; and (4) the name of the country if more than one entry per year.
43. For El Salvador, see M Kaye, 'The role of truth commissions in the search for justice, reconciliation and democratisation: the Salvadoran and Honduran cases', Journal of Latin American Studies, 29(3), 1997, pp 93-716. For Guatemala, see D Gairdner, 'Truth and regime change: the role of truth commissions in transitions from authoritarianism to democracy', in BA Andreassen & E Skaar (eds), Reconciliation or Justice? Protecting Human Rights Through Truth Commissions and Trials, Oslo: Cappelen Akademisk Forlag, 1998, pp 135-175 (in Norwegian).
44. For El Salvador, see M Kaye, 'The role of truth commissions in the search for justice, reconciliation and democratisation: the Salvadoran and Honduran cases', Journal of Latin American Studies, 29(3), 1997, pp 93-716. For Guatemala, see D Gairdner, 'Truth and regime change: the role of truth commissions in transitions from authoritarianism to democracy', in BA Andreassen & E Skaar (eds), Reconciliation or Justice? Protecting Human Rights Through Truth Commissions and Trials, Oslo: Cappelen Akademisk Forlag, 1998, pp 135-175 (in Norwegian).
45. See IP Stotzky, Silencing the Guns in Haiti, The Promise of Deliberative Democracy, Chicago, IL: University of Chicago Press, 1997.
46. C Alden & M Simpson, 'Mozambique: a delicate peace'. Journal of Modern African Studies, 31(1), 1993, pp 109-130.
47. See various country-specific articles in Kritz, Transitional Justice.
48. See Hayner, 'Fifteen truth commissions'.
49. For accounts of the Namibian transition process, see Africa Watch, Accountability in Namibia. Human Rights and the Transition to Democracy, New York: Africa Watch, 1992.
50. FZ Brown, 'Cambodia in 1992. Peace at peril', Asian Survey, XXXIlI(1), 1993, pp 83-90.
51. BM Villegas, 'The Philippines in 1986. Democratic reconstruction in the post-Marcos era', Asian Survey, XXVII(2), 1987, pp 194-205.
52. WFS Miles, 'Tragic tradeoffs: democracy and security in Chad', Journal of Modern African Studies, 33(1), 1995, pp 53-65.
53. W Hunter, 'Negotiating civil-military relations in post-authoritarian Argentina and Chile', International Studies Quarterly, 42(2), 1998, p 312.
54. The Economist, 27 February-5 March 1999, p 34.
55. According to two separate polls, between 75% and 80% of Cambodians favour an international tribunal. New York Times, 2 March 1999, pp A1, A8.
56. The Economist, 29 May-4 June 1999, p 6.
57. Based on the experiences of Chile and Argentina, Wendy Hunter has suggested such a complex nested games approach, formalising a three-way bargaining game between the democratic government, the military and civil society. She also mentions the judiciary as a potential veto player in the bargaining over human rights policy. For details, see Hunter, 'Negotiating civil-military relations in post-authoritarian Argentina and Chile.' For an account of the theory of nested games, see G Tsebelis, Nested Games: Rational Choice in Comparative Politics, Berkeley, CA: University of California Press, 1990.
58. Based on the experiences of Chile and Argentina, Wendy Hunter has suggested such a complex nested games approach, formalising a three-way bargaining game between the democratic government, the military and civil society. She also mentions the judiciary as a potential veto player in the bargaining over human rights policy. For details, see Hunter, 'Negotiating civil-military relations in post-authoritarian Argentina and Chile.' For an account of the theory of nested games, see G Tsebelis, Nested Games: Rational Choice in Comparative Politics, Berkeley, CA: University of California Press, 1990.
59. David Pion-Berlin and Craig Argeneaux argue that success or failure of military suppression of human rights initiatives at the time of transition can not be fully explained by the transitional balance of power. Using empirical evidence from Chile and Argentina they argue that policy outcomes are inextricably tied to levels of institution concentration and autonomy in the executive branch. For details, see D Pion-Berlin & C Argeneaux, 'Tipping the civil-military balance: institutions and human rights policy in democratic Argentina and Chile', Comparative Political Studies, 31(5), 1998, p 633.