Are We There Yet: Ideas For Evaluating the Progress of Transitional Justice

BY SUSAN BENESCH

Once unimaginable, prosecutions for state-sponsored atrocities are multiplying rapidly.  They continue to deliver new milestones, both by expanding transnationally and by reaching previously untouchable defendants. Some trials astonish even their own proponents, as this symposium illustrated: Peru’s conviction of its former head of state Alberto Fujimori in April left Ronald Gamarra Herrera pinching himself, even though he played a key role in it.1 At the same time, prosecutions are still being launched in countries where the first trials began decades ago and where they are now old news, such as Germany or Argentina.2

Worldwide, the record of trials, truth commissions and other forms of what has been called transitional justice for nearly two decades3 is now long and large enough to suggest new retrospective, evaluative questions: when can one conclude that the “transition” in “transitional justice” has happened? And along the way to the achievement or consolidation of transitional justice, are there indicators that can be used to measure progress?

Prosecutions like Fujimori’s are surely key indicators, since they break the ice of impunity. For that same reason, however, they are likely to signal an early stage in transitional justice rather than its consolidation. Other indicators must be found, to pinpoint later stages.

This essay offers some ideas for systematically evaluating and comparing transitional justice processes. I begin by discussing what transitional justice means and what its goals are. I then propose one meta-goal, which is to change a society so that atrocities will not recur in the foreseeable future.

The future cannot be measured, but it is possible to gauge a group’s fear of the future –  its expectations as to whether atrocities will resume – by surveying its members, especially surviving members of victim groups. When fear of future atrocities diminishes, that signals a major transition and it is a likely indicator of further progress.

If it seems odd to measure transitional justice processes by a population’s expectations for the future, consider two points. First, transitional justice surely cannot be considered successful unless it improves the circumstances of the population that suffered atrocities in the first place. Therefore it makes sense to examine a population’s own attitudes, not only those of outsiders or experts, and favorable expectations for the future are an important sign of well-being.

The second point is that expectations for the future are the basis of all refugee repatriation.  Major state-sponsored human rights violations produce refugees, who must decide, sooner or later, whether to go home. As a rule, refugees return when it finally seems safe to do so. Therefore they must ask themselves the same question that I propose in the context of transitional justice: “Are atrocities likely to resume in the foreseeable future?” The fields of transitional justice and refugee protection share goals, in my view, and the nexus between them is ripe for scholarly investigation and fieldwork.

In the rest of this essay, I briefly consider other possible indicators of the progress of transitional justice, and contend that it cannot be consolidated without accountability.

Transitional justice has grown rapidly from a far-fetched aspiration to “a paradigm of rule of law.”4 It has been the subject of nearly two decades of probing debate,5 and it is now discussed as a matter of course whenever state-sponsored atrocities come to international attention. Transitional justice is well-recognized as a bulging box of tools including trials and truth commissions, but there is still no consensus on what its purpose is, or what sort of change it is meant to produce, or on what specific steps must be taken to make the change, if any. “So far,” writes Paige Arthur near the end of her valuable essay on the term’s conceptual history, “there is no single theory of transitional justice and the term does not have a fixed meaning.”6

Or as Naomi Roht-Arriaza has put it, the term “transitional justice” is “a bit slippery.” As she rightly points out, it is defined without articulating  “what the state is transitioning to.”7 This is to be expected, since the word “transition” refers first of all to what states and societies have tried to reckon with and depart from: massive human rights violations carried out by, or under the auspices of, the state.

It has often been suggested, however, that the normative goal of transitional justice is liberal democracy. Transition “has come to mean change in a liberalizing direction,”8 whether that change refers to the adoption of mechanisms and practices common to liberal democracies such as elections, or to widespread acceptance of democracy and the rule of law.9 Argentina and other Latin American countries that served as early case studies in the new field of transitional justice, in the late 1980s and early 1990s, were emerging from military to democratic rule even as fledgling governments tried to contend with their predecessors’ crimes. Two goals developed together: providing “some measure of justice to those who suffered under repressive state regimes” in the past, and “facilitating an exit from authoritarianism and shoring up a fragile democracy.”10 Transitional justice seemed inextricable from transitions to democracy, not unreasonably since they often happened together.

But transitional justice and transition to democracy are not the same. Evolution toward a more democratic form of government cannot fully capture the process or goals of transitional justice, for several reasons.

First, “democracy” itself is a slippery term,11 even though political scientists have described relevant aspects of it in the large literature on democratic transition.12 Second, it isn’t clear that liberal democracy is the optimal form of government for all countries.13 Third, “democratic transition” does not describe what it is that a society seeks to escape by means of transitional justice: atrocities committed by the state against its own population.

Noting, like Roht-Arriaza, that transitional justice is “often an ill-defined realm that encompasses a multitude of discrete, though overlapping, and often conflicting themes,” Phil Clark has offered a conceptual framework based on six themes: reconciliation, peace, justice, healing, forgiveness, and truth14—a kind of menu from which he suggests transitional societies may “decide which aims to pursue.”

Those goals15 are all worthy but too inchoate, without more, to serve as a basis for evaluating the achievement or consolidation of transition. How could one conclude that healing has been completed, or that enough reconciliation has taken place? Indeed such goals may be simply unachievable for some people who have lived through atrocities, as Harvey M. Weinstein and his co-authors suggest, based on extensive interviews with survivors.16 In my view it is also presumptuous for non-victims to set goals such as reconciliation, which cannot be reached unless victims take part, and which cannot be fully evaluated except by a victim herself, in the intimate territory of her own mind.

Juan Méndez contends that in the wake of state crimes, emerging norms dictate that states now have four obligations to victims and to society at large: to explore and disclose the truth about the crimes, to provide justice in the form of criminal prosecutions, to give reparations to victims, and to clear the ranks of state institutions such as the police and military of those who have abused their power to commit human rights violations.17 The last of these could be easily quantified, as long as there is adequate information available on which government and security agents committed crimes.  The other three obligations Méndez lists would be more challenging to use as indicators. For example, criminal prosecutions are easy to count but it would be difficult to say how many are needed before one can say that justice has been provided, since such trials will always reach only a subset of the possible defendants, and since trials vary widely in their effect on impunity, and on the chances of state crimes recurring.

Any number of other reparative steps can be taken and goals can be met in the aftermath of state crimes, and some of them are in fact necessary for the consolidation of transitional justice. I list several that may be necessary here, with two caveats. First, some of these steps and goals are just as difficult to measure as some of those mentioned above. Second, since the transitional justice path of each society will (and should) be different, it may not be possible or useful to measure every component of transitional justice comparatively, whether within a region like Latin America, or from one region to another.

  • The rule of law has been revived or instated. This begs the question “what is the rule of law?” which is vital but outside the scope of this brief paper.
  • The population has learned and acknowledged that massive crimes were committed. Especially where members of the putative victim group are scarce, majority group members could be surveyed to find out whether they acknowledge that crimes were committed.
  • The state has publicly recognized that crimes were committed in its name, and apologized to survivors.
  • Society has developed a shared narrative and understanding of why massive human rights violations were committed.
  • Perpetrators have been held publicly responsible for their crimes, and at the same time, it is widely recognized that the crimes were not the exclusive responsibility of a few perpetrators.

If there is a single sine qua non for the prevention of future atrocities, and therefore for the consolidation of transitional justice, it must be accountability. Some perpetrators, at least, must be held formally responsible. This is not to say that trials prevent future atrocities by deterring future perpetrators. As Mark Drumbl has pointed out, the chances of that are minimal.18 The process is complex and collective. When criminal trials properly exercise their expressive function, they recount the story of mass crimes, “can turn tragedy into a teaching moment”19 and contribute to deterrence in a larger sense, by inoculating a society against future violence. Schools and media outlets contribute vitally to this narrative function.

All transitional justice efforts – from trials to reparations, memorials and truth commissions – contribute implicitly to preventing future massive human rights violations. That is the meta-goal of transitional justice:  to change a society so that massive state-sponsored crimes are unlikely to resume in the foreseeable future.20 By no coincidence, it is the frequently-voiced aspiration of affected populations.  In the former Yugoslavia, for example, where a large variety of civil society organizations have formed the Regional Commission for Truth-seeking and Truth-telling about War Crimes committed in former Yugoslavia (RECOM), Natasa Kandic said of that effort, which she is helping to lead, “We have the responsibility towards following generation, to leave them the heritage which is not marked by crimes, but the facts which will help them not to have the similar happenings in these areas ever again, but which will also help us and them realize what actually happened here at those times” (emphasis added).21

The meta-goal can be made real, and it has probably been achieved already, in some transitional justice cases. (It would be interesting to study, for example, whether Jews now living in Germany feel convinced that massive state-sponsored crimes against them will not recur, or whether Argentines believe their country has been inoculated against a new ‘dirty war,’ if those countries were to find themselves in the relevant political and geopolitical contexts again.)

To be sure, the goal of preventing future atrocities is all too bitterly familiar– only think of the phrase “never again” and its frequent betrayal.  But “never again” refers to the aspiration that genocide and crimes against humanity will not recur anywhere. It has not been limited, traditionally, to preventing such crimes in the same places where they have happened before.  By contrast each transitional justice process  works on a particular situation. Transitional justice is a series of endeavors tailored to certain countries, societies, and situations, and undertaken within them, albeit often with heavy international participation and influence.

One cannot measure the likelihood that atrocities will resume, however, even if the inquiry is limited to a particular country or society. The most obvious indicator of a transition from atrocities is peace, but the absence of violence at a particular time does not necessarily predict that it will not resume.  Lasting peace is “more than just the absence of war” as the Report of the Panel on United Nations Peace Operations, often dubbed the Brahimi Report after its principal author, Lakhdar Brahimi, put it.22 It also requires the expectation of continued peace, or confidence that atrocities will not resume.

Such expectations can and should be measured. Surveys can be conducted23 to discover whether the members of a society, especially those in the putative victim group, expect peace: whether they believe that their society and state have changed enough so that atrocities are no longer likely to resume. This is an important and useful indicator, for several reasons.

First, the members of a given society are generally best attuned to its own shifting and emerging tendencies, especially in the wake of massive human rights violations, so they are likely to gauge the danger as accurately as anyone else. Members of a group that was persecuted in the recent past are likely to be more sensitized than ever, after having experienced the process that led to atrocities in the first place. They are most likely to recognize even the earliest signs of catastrophe. Finally, a population’s level of fear is an important harbinger of change because a group’s expectations for the future help to shape the future, unless the group is powerless. When fear diminishes and expectations improve, civic engagement and economic activity increase, further diminishing the chance of atrocities.

This framework must be flexible, of course, and cannot apply in the same way to all transitional justice scenarios. For example in some situations, it should be sadly noted, few potential victims are available to participate in transitional justice or to give their opinions on the likelihood of new atrocities, because the rest of their group have been killed, or have fled.  In such cases, there are other possibilities for evaluation.

Where large numbers of people have fled and still hope to return, refugees abroad may be surveyed, even though they may not be as well placed to gauge danger as if they were back at home. Still, when refugees choose to repatriate voluntarily, their decision means that they no longer fear the same danger that caused them to flee in the first place. If the perceptions of refugees abroad are included in future efforts to evaluate the progress of transitional justice, refugee protection efforts and transitional justice will overlap fruitfully.

In general it is important to understand that the fields of refugee protection and transitional justice share the same ultimate goal: to protect civilian populations from large-scale human rights abuses in the future. Moreover, the populations themselves are a key source of information on how best to reach the goal, and on the pace of progress toward it.

Susan Benesch is Dean’s Visiting Scholar at Georgetown University Law School, and senior legal advisor to the Center for Justice and Accountability in San Francisco.


ENDNOTES

  1. Gamarra, R. (2009). Lessons From the Trial of the Former President Alberto Fujimori, Global Studies Review, Vol. 5. No. 3, Fall. [↩]
  2. See e.g. John Demjanjuk Nazi crimes trial starts in Munich, BBC News, Nov. 30, 2009 available at http://news.bbc.co.uk/2/hi/europe/8385577.stm [last visited Nov. 30, 2009]. [↩]
  3. At least since 1991, but modern transitional justice began in the wake of World War II. For description and discussion of specific examples, see the online Transitional Justice Forum, at http://tj-forum.org/ (last visited Sept. 14, 2009); Naomi Roht-Arriaza and Javier Mariezcurrena, eds., Transitional Justice in the Twenty-First Century, Beyond Truth versus Justice (2006); and Priscilla B. Hayner, Unspeakable Truths; Confronting State Terror and Atrocity (2001). For historical analysis of modern transitional justice, and useful description of three phases in its development, see Ruti G. Teitel, Transitional Justice Genealogy, 16 Harvard Human Rights Journal 69 (2003). [↩]
  4. Ruti G. Teitel, Transitional Justice Genealogy, 16 Harvard Human Rights Journal 69 (2003). [↩]
  5. Paige Arthur, How “Transitions” Reshaped Human Rights: A Conceptual History of Transitional Justice, Human Rights Quarterly 31 (2009) 321-367. [↩]
  6. Id at 359. [↩]
  7. Roht-Arriaza refers to this definition: “conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes.” Naomi Roht-Arriaza, The New Landscape of Transitional Justice, in Transitional Justice in the Twenty-First Century; Beyond Truth versus Justice, Naomi Roht-Arriaza and Javier Mariezcurrena, eds, p. 1. [↩]
  8. Teitel, Transitional Justice. [↩]
  9. Id. [↩]
  10. Arthur, 355. [↩]
  11. Teitel, Transitional Justice, noting substantial debate about the meaning of ‘transition’ and ‘democracy’ inter alia, at 5. [↩]
  12. See e.g. Juan J. Linz and Alfred Stepan, Problems of Democratic Transition and Consolidation: Southern Europe, South America, and Post-Communist Europe (1996) and Guillermo O’Donnell, Philippe Schmitter, and Laurence Whitehead, Transitions from Authoritarian Rule: Prospects for Democracy (1986), and Ruti G. Teitel, Transitional Justice, commenting on the political science literature on democratic transition, at 5 et seq. [↩]
  13. Amid the large body of scholarship and debate on the future of liberal democracy, one thought-provoking example is Philippe Schmitter, The Future of Democracy: Could it Be a Matter of Scale? Social Research, Fall 1999. [↩]
  14. Phil Clark, Establishing a Conceptual Framework: Six Key Transitional Justice Themes, in Phil Clark and Zachary Kaufman (eds.), After Genocide:  Transitional Justice, Post-Conflict Reconstruction and Reconciliation in Rwanda and Beyond, (2009), p. 193. [↩]
  15. For further consideration of various goals, see Paige, supra; Mark Drumbl, Atrocity, Punishment and International Law, especially but not only 149-209; Ruti G. Teitel, Transitional Justice (2002); Naomi Roht-Arriaza and Javier Mariezcurrena, Transitional Justice in the Twenty-First Century (2006), especially Ellen Lutz’s chapter in this volume, “Transitional Justice: Lessons Learned and the Road Ahead”; Miriam J. Aukerman, Extraordinary Evil, Ordinary Crime: A Framework for Understanding Transitional Justice, 15 Harvard Human Rights Journal 39 (2002); Phil Clark, Establishing a Conceptual Framework: Six Key Transitional Justice Themes, After Genocide; Transitional Justice, Post-Conflict Reconstruction and Reconciliation in Rwanda, 191. [↩]
  16. Laurel E. Fletcher and Harvey Weinstein, Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation, 24 Human Rights Quarterly 3 (2002) 573-639; Eric Stover, Harvey M. Weinstein (eds), My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity (2004). [↩]
  17. Juan Mendez, “Lou Henkin, Transitional Justice, and the Prevention of Genocide,” in “The Future of Human Rights Law: A Tribute to Lou Henkin,” 38 Columbia Human Rights Law Review 3, (Spring 2007), 480. [↩]
  18. Mark A. Drumbl, Atrocity, Punishment, and International Law (2007), 169-173. [↩]
  19. Id at 175. [↩]
  20. This is not to ignore another fundamental goal, “to respond to the suffering from past abuses,” as Ellen Lutz has described it, nor arguments like Aryeh Neier’s, that punishing human rights violators is a vital end in itself. These goals, self-justifying though they are, are also necessary steps along the path to diminishing the chances that atrocities will resume. As I argue below, accountability is a sine qua non for the consolidation of transitional justice. Therefore it is subsumed by the meta-goal that I propose. [↩]
  21. Documenta, RECOM as Rescue for Post-Yugoslav Countries, Oct. 15, 2009 available at http://humanrightshouse.org/Articles/12082.html [last viewed Dec. 1, 2009]. [↩]
  22. United Nations, “Report of the Panel on United Nations Peace Operations,” Un Doc.A/55/305-S/2000/809 (21 August 2000), p. 3. [↩]
  23. Eric Stover and Harvey M. Weinstein have done groundbreaking work in surveying populations affected by mass atrocities – and by transitional justice. As Stover and Weinstein point out, it is important to consult the members of the societies in question, not simply to surmise their views. See Eric Stover, Harvey M. Weinstein (eds), My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity (2004). [↩]
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