Human Rights and Political Choice: A Framework for Transitional GovernanceEmily Erickson, Michael Hanley, and Mariana Olaizola

Princeton University

A successive transition from the turmoil of human rights violations to the increasingly tranquil shores of international justice—this is the riparian metaphor at the center of Karen Sikkink’s The Justice Cascade: How Human Rights Prosecutions are Changing World Politics. For much of human history, human rights violations within sovereign state boundaries were left un-judged and unpunished. Traditional concepts of international law view individual states as the sole legal actors within an international institution; only the state apparatus as a whole was held accountable to the international community for human rights crimes. With no positive incentives or credible threats for personal retribution, individuals in power were not dissuaded from committing human rights violations, as they themselves would not be held accountable.

Sikkink, however, posits that there has been a recent shift toward individualism in international justice, which acknowledges the culpability of particular individuals behind human rights atrocities and demands that they be held independently accountable for their crimes. Critical to the understanding of Sikkink’s theory is her definition of justice, by which she means “legal accountability for crimes,” and of accountability, by which she means “practices where some actors held other actors to a set of standards and impose sanctions if these standards are not met.”1 The human rights violations under Sikkink’s consideration are the “physical integrity rights” or “rights of the person,” which include prohibitions on torture, summary execution, genocide, war crimes, and crimes against humanity.2

In this paper we will evaluate the extent to which a new justice norm, global in scope, of individual criminal accountability has indeed taken hold. We begin with an overview of human rights trials in Argentina, the paragon of Sikkink’s cascade image of accountability, and discuss how her experiences in South America conform to her conception of justice. The conditions for a justice cascade – gross violations of human rights, ruptured transitions, capacity for effective trials, a steambed of international rights laws, and a neighborhood that supports and promotes the norms of a justice cascade—will emerge from this case as Sikkink looks to apply the Argentine experience to the world stage.

We then turn the global scope, as Sikkink herself notes that “[m]ost previous discussions of these issues have only looked at a piece of the overall trend, for example, examining only international trials, specific international trials, a chosen few foreign trials, or domestic trials in certain countries. I argue that we need to zoom out and look at all the pieces together in order to see the global trend unfolding.”3

Yet an intuitive application of Sikkink’s propositions to other transitional states immediately runs into issues. How do we address the use of a truth and reconciliation commission (TRC), a form of “restorative justice” that has often been selected by countries in 1 Sikkink, Kathryn. The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics. New York: W. W. Norton & Company, 2011. Pp. 12-132 Ibid. 16.3 Ibid. 18.

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democratic transition? How do we evaluate cases in areas where the “legal steambed” of human rights has not taken hold? What if a country simply does not have the resources to conduct trials? These questions propose two alternatives to the justice cascade. Either the norm of individual accountability is a regional phenomenon, or it could be the case that “justice” is only one of several possible ends to transitional governance, to be conditioned on sufficient resources and political choices that move a transition towards trials.

This report will pursue both of these alternatives in turn. We first question the conditions and choices that must be made to reach a justice cascade vis-à-vis other alternatives during transitional governance. We will formulate “justice” and “stability” as the possible values for which leaders strive in democratization and the means that are undertaken to reach these ends. While these values are not mutually exclusive in theory, we argue that in practice most leaders regard policy as a trade-off between the two, that justice and stability become an “either-or” choice.

From here, we condition these political choices on capacity limitations, which can be grounded in resources or judicial capacity. In doing so, we arrive at our Political Choice Framework, a proposed general model for transitional governance. To see this model applied, we examine eleven transitional governments from different regions throughout the world – Argentina, El Salvador, Guatamala, Brazil, South Africa, Ghana, Sierra Leone, Mozambique, Timor-Leste, South Korea, and Thailand. We stress that, although our framework applies all of Sikkink’s conditions for a justice cascade, the results of these transitional governments are widely divergent.

Given that our focus has, to this point, been on the actions on the state level, we broaden our framework to the regional level to examine if the cascade has taken hold across regions. To this end, we (i) compare the paths of each country within a particular region, and (ii) examine the efforts of regional and international institutions insofar as they reveal the attitudes of leaders within an area and the circumstances exhibited within regions as a whole. This analysis will reveal that, while it is possible to draw regional paths within our framework, a regional consideration is not comprehensive, nor does it suggest any occurrence of the justice cascade.

Does Sikkink’s justice cascade truly promulgate a growing universal norm? Through our Political Choice Framework, we posit that the justice cascade is but one path in the model of transitional governance, and, as such, the “cascade” is neither global nor a distinctly regional phenomenon. Ultimately, Sikkink’s “global approach” goes awry in three important ways: (i) the statement prematurely assumes that trends are regional or global in character, (ii) the approach assumes propositions that are generalized from only the Argentine experience, which leads to our most important claim, (iii), that Sikkink’s approach zooms out too far so as to de-emphasize the crucial role that political choices play in transitional governance. We argue that our Political Choice Framework is more global in character, as it embodies the ways that politics and circumstantial capacities can lead transitional governance away from a traditional understanding of justice.

Sikkink’s Case for the Justice Cascade

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The Argentine Experience

The inspiration behind Sikkink’s study is her experience in Argentina during the 1985 human right trials of the military Junta, where she conducted extensive investigations into the motivations for and ramifications of this domestic experiment. She then builds on this experience by examining the influence that such trials had on other countries in Latin America that were also undergoing democratic transitions at the time. As Sikkink herself acknowledges, the “stream of prosecutions [that] began to flow through Latin America—including Bolivia, Guatemala, Panama, Chile, and Haiti” were on the whole less successful than the trials of human rights violators in Argentina, as indeed the prosecutions in these other countries “often moved slowly and were contested, uncertain, and perceived as still dangerous and reversible.”4 However, before embarking on a nuanced examination of other cases in Latin America, it is worthwhile to review Sikkink’s valuable account of the justice cascade in Argentina.

Under the military regime, from 1976-1983, Argentina underwent the most repressive episode in its history. Indeed, the regime was notable for its novel and systematic methods of disappearances, torture and murder.5 The scale of violence was severe enough to cause public outrage but it was not acute enough to stifle the human rights movement.6 Sikkink documents how the initial formation and mobilization of activist groups, including the Mothers and Grandmothers of the Plaza de Mayo, the Permanent Assembly for Human Rights, the Center for Legal and Social Studies and the Ecumenical Movement for Human Rights, was aimed at locating victims of disappearances and not yet on the pursuit of justice.7 A key player in introducing the demand for prosecutions was the regional organization, the Inter-American Commission on Human Rights (IACHR), which had been reinvigorated by a set of competent leaders committed to the human rights cause.8 However, it was the active work of civil society organizations, such as the ones already mentioned, that made the circulation of the commission’s recommendations possible. Thus, the interaction of international and domestic NGO’s made for a unique partnership that gave impetus to the undertaking of prosecuting Junta officials for human rights violations. Indeed, the IACHR had issued similar recommendations to Chile, El Salvador and Guatemala the previous decade but none of these countries had heeded the commission’s advice to nearly the same extent.

Another crucial factor that primed Argentina for human rights trials was the military’s severe loss of credibility after the war with Britain over the Malvinas/Falkans Islands. It was the delegitimation of the armed forces that allowed the new democratic government under Raúl Alfonsín to thwart the military’s attempts to secure self-amnesty.9 Sikkink thus makes the astute and reasonable suggestion that countries which undergo such “ruptured” transitions to democracy, as opposed to “pacted” transitions whereby the demands for amnesty of previous authoritarian leaders are taken into account in transition negotiations, are more likely to initiate prosecutions.10 Under the Alfonsín government, nine Junta officers were put to trial and five

4 Ibid., 965 Ibid., 636 Ibid., 817 Ibid., 63-48 Ibid., 649 Ibid. 6910 Ibid. 81

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were prosecuted. Notably, General Videla and Admiral Massera, the two principal leaders of the Juntas, were sentenced to life imprisonment. The other officers were convicted to at least four and a half years in prison.11

Argentina is a case where the search for truth and the pursuit of justice operated in tandem. Indeed, it was the National Commission on the Disappeared (CONADEP), Argentina’s TRC, which provided the credible evidence in the “Nunca Mas” (Never Again) report for the potential conviction of 700 military and police officials.12 In this sense, the TRC and the trials were mutually reinforcing. The government’s support of the commission’s mandate to collect evidence on human rights violations and to make prosecution recommendations raised expectations that trials would ensue, and thus truth and justice were seen as complementary.

From Argentina to a Justice Cascade

Having highlighted the factors that contributed to the trials and commissions in Argentina, Sikkink transitions to the ways that the Argentine case served as a turning point in giving justice its “cascade-like” momentum. She notes that, compared to its counterparts in Portugal and Greece, the trials in Argentina were unique in that they occurred in a setting and timeframe in which the world was ready and primed to respond to a growing norm of individual accountability. In terms of setting, Argentina was located amidst many other countries that were undergoing transitions at the same time. Thus, she argues, the Argentine experience served as a largely successful example that other democratizing countries had an interest in imitating.13 The trials also occurred at a time when “the global human rights movement was gaining strength and stability, and diverse groups spread the news of the Argentine experience with prosecutions.”14 Sikkink emphasizes that individuals within these human rights regimes and networks were instrumental in this spread, acting like “the expanding ripples of raindrops on a lake: each person in the network helped form and connect to new networks that sent the ideas further out into the world.”15

Just as individuals were important in the spread of individual accountability, the leaders of transitional regimes are essential in that they chose whether or not to adopt models that conform to this spreading norm of justice.16 Yet what factors influence whether a leader chooses to conform to this cascade? Looking to the Argentine case as an origin of the “justice cascade,” Sikkink draws five conditions that seem necessary within a domestic transition for the cascade to have its effect. These necessary conditions are: (i) the severity of violations, (ii) the power balance of the transitional government, (iii) the surrounding countries to provide a model and resources, (iv) the legal “steambed” in international law and rights regimes, and (v) the ability to hold effective trials

“Shocking” Severity of Violations

11 Ibid. 7512 Ibid. 72.13 Ibid. 88.14 Ibid. 89.15 Ibid. 91.16 Ibid. 246.

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Deciding to prosecute someone for human rights violations not only requires that such violations actually take place, but that they occur with a high degree of severity. As former citizens of a totalitarian regime, victims living in transitional countries need some strong motivation to change their imbedded perceptions of sovereign impunity. Sikkink contends that a high severity of rights violations creates a “shock to the reigning orthodoxy of the impunity model” that creates “pressure for new forms of accountability.”17

Power Balance in Transition

Another pertinent factor is the composition of the transitional regime. These temporary governments can either be “pacted” or “ruptured,” depending on whether the end of the autocratic state was negotiated or forced. “Pacted” transitions stem from a negotiated settlement, “recognizing that the power holders from the previous regime retain much more power to determine the policies of the new government.”18 As a result, “pacted” democratizations tend not to hold trials, as the previous power holders have leverage in the transitional government to avoid such an outcome. Rather, Sikkink argues that “ruptured” transitions lend themselves to trials, since “the previous office holders had stepped down from their positions of power and had lost the ability to overturn the new democratic regimes.”19

Neighborhood Import of Structures and Resources

With the norm of accountability having taken off from Argentina, Sikkink stresses that the surrounding context was instrumental for the “cascade.” In fact, she states that “the single most important determinant for whether a country will use a truth commission of human rights prosecutions is the number of states in that region that have previously used a truth commission or prosecutions.”20 The adoption of norms depends on the diffusion of models that purport the norms as well as practical procedures for achieving these norms.

International Law – Legal Steambed for the Cascade

As well as proximity to other states within the same region, Sikkink addresses the added value of a matured legal structure for human rights in international institutions and NGOs. With such a highly legalized “steambed,” Sikkink argues that these international regimes facilitated the transfer of the norms underpinning the justice cascade to other regions.21 The Argentine case was unique in that it occurred at a time of sufficient maturity in human rights regimes. By the late 1980s, the international community was ready to internalize a norm of individual accountability and spread this model in a cascade-like fashion.

Capacity for Trials

17 Ibid 245.18 Ibid 32.19 Ibid 245.20 Ibid 247, citing: Kim, Hunjoon. “Why and When Do States Use Human Rights Trials and Truth Commissions After Transition? An Event History Analysis of 100 Countries Covering 1974-2004.” Unpublished manuscript, 2007.21 Ibid.

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Although this factor is more implied than explicitly outlined, Sikkink does mention a required capacity for trials in conjunction with her neighborhood proposition. In noting that the “diffusion” of models was necessary for the justice cascade, she infers that a domestic capacity to conduct effective trials and commissions must be present for the cascade to take hold. Even if these models, derived largely from domestic legal structures, were not present, Sikkink suggests that these structures can be imported from nearby neighbors.22

Issues on the Global Stage

Thus far, we have formulated the two general arguments from that Sikkink makes regarding the justice cascade, that it is a dramatic new trend in world politics,23 and that its occurrence has depended on the five generalized conditions above. These two claims immediately run into issues when held against one another in the backdrop of specific cases outside those that Sikkink examined.

The first issue, as suggested by the dilemma itself, concerns Sikkink’s selection of cases. As Sikkink outlines her theory, it remains limited in geographic scope, focusing broadly on human rights transitions in South America and Europe; specifically Argentina, Uruguay, Greece, and Portugal. Her analysis excludes case studies in Africa and Asia, which, as seen below, have the highest average levels of repression from 1980 through 2005.24 The Middle East too, is absent from Sikkink’s analysis, though her book was published prior to the Arab uprising. The justice cascade cannot be accurately labeled a global trend without further investigation into repression, prosecution, and justice trends in a variety of regions across the globe. To what extent does the justice cascade truly apply on a global level? Though the specter of national truth commissions and international tribunals hangs over the heads of deposed Arab leaders—including Ben Ali of Tunisia, Hosni Mubarak of Egypt, and potentially Bashar al-Assad of Syria—developments in the Middle East are too recent to glean a wide-frame perspective.25

In order to properly “zoom out and look at all the pieces together in order to see the global trend unfolding,”26 we must still verify that the conditions for a justice cascade actually apply to states around the world, using case studies from other regions. In attempting to do so, however, we immediately run into issues. How do we address the use and spread of TRCs, pioneered in the African region by South Africa and borrowed by countries such as Ghana? In the event that a country prefers to use just a TRC, as had been done in Brazil, does that signify a blatant disregard for justice? How do we address the use of pacted transitions, a transitional government that would render trials ineffective? What if a country simply does not have the resources to conduct trials, as had been the case in Thailand and Mozambique?

22 Ibid.23 Sikkink 23-2424 Sikkink 181.25 Michael Ishay, “Kathryn Sikkink’s ‘The Justice Cascade: How Human Rights Prosecutions are Changing World Politics,’ in The Washington Post. 21 Oct. 2011. Accessed 2 Apr. 2012. <http://www.washingtonpost.com/entertainment/books/kathryn-sikkinks-the-justice-cascade-how-human-rights-prosecutions-are-changing-world-politics/2011/08/22/gIQAxk7M4L_story.html >26 Sikkink 18.

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While Sikkink simply replies that “[international policies] are rapidly adopted by many different countries for reasons that appear to have less to do with their domestic politics or internal pressures, and more to do with imitating policies other countries are adopting.”27 Yet behind this idealistic rhetoric is a largely unsubstantiated claim. Even if state leaders and its people wish to adopt the models of other countries, it seems unreasonable to assume that a country with a lack of resources will be able to successfully implement the models of its richer peers, or that a pacted transition will agree to prosecute half of its state leaders.28

Taken at face value, this issue presents two alternatives. Either we can consider the justice cascade as a phenomenon limited by region, or we can step back and attempt to provide a more appropriate model for transitional governance. We opt for the latter option. In considering a more generalized framework, we agree with Martingai Sirleaf in nothing that "the choice of transitional justice mechanisms is individualized for each country and must depend on the post-transition context: the nature of the peace settlement, the type of transition, the international context, culture, financial considerations, and the legacy of the past."29 In that vein, we will discuss the different paths through which nations approach accountability in transition, to explore whether or not the justice cascade is truly a global phenomenon.

Towards a Framework – Value Tradeoffs and Capacity Conditions

The Perceived Tradeoff of Political Leaders – Stability vs. Justice

We establish a divergence between a state’s interest in securing stability and an interest in pursuing justice after transition to democracy. In our case studies, we observe that leaders often opted for establishing Truth and Reconciliation Commissions (TRCs) – primarily during, but not limited to, pacted transitions – instead of carrying out prosecutions because they feared that putting military officials on trial would upset the temporary peace and interfere with the consolidation of democracy.

Figure 1: Values and Their Processes

27 Sikkink 22.28 We acknowledge later that a resource-poor country may receive assistance from peers, yet there is no reason to simply assume that this is always the case.29 Sirleaf, Martingai. “National reconciliation and transitional justice processes in West Africa: A comparative study of Sierra Leone and Ghana.” Unpublished MA dissertation, University of Ghana, Legon, 2005.

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Sikkink devotes a whole chapter in her book to challenge the notion that justice and stability are mutually exclusive. She questions the claims made by political scientists such as Samuel Huntington, Guillermo O’Donnell and Philippe Schmitter, arguing that “there is not yet systematic empirical evidence that prosecutions do block peace processes or exacerbate conflict.”30 Sikkink continues to highlight how prosecutions in Latin America have actually had the effect of increasing democratic stability, improving the human rights record, lowering the frequency of conflicts and strengthening systems of rule of law.31

Our framework draws a crucial distinction between a “truth commission” and a TRC. A truth commission, such as CONADEP in Argentina, only focuses on gathering information. As a result, truth commissions do not delegate a specific form of closure, and thus may be used in conjunction with a trial, as a tool oriented towards justice. By contrast, a TRC grants some form of amnesty in exchange for the testimony as a means to reintegrate the violators in society. As a TRC provides a different form of closure, it can be seen as a standalone process, specifically oriented towards stability.

In establishing the divergence between stability and justice on the Political Framework, we do not seek to disregard or contradict Sikkink’s findings. Our argument is not that stability and justice are in fact tradeoffs. After all, an effective and popular trial can clearly achieve both stability and justice. Instead, we argue that leaders have employed this apparent dichotomy in justifying their choice of establishing trials, TRCs, or neither. In Chile, for example, the democratic government that succeeded the Pinochet regime chose to pursue truth through a TRC and, in the spirit of reconciliation, intentionally evaded trials.”32 This was the case until 1998, when Pinochet was prosecuted in Britain. Further, in the cases that have employed both options, such as Timor-Leste, El Salvador, and Sierra Leone, leaders pursued the other value only after the original political choice had failed. Thus, regardless of whether or not prosecutions actually have a disruptive effect in new democracies, the fact is that leaders perceive, or at least openly signal that they perceive, a tradeoff between justice and stability.

Conditioning Political Choice to Capacity

One further condition that a general framework of transitional governance must keep in mind is the wide variety of resource and structural capacities available to different countries. Conducting trials requires resources and judicial structures and experience, an issue that is exacerbated by the fact that most transitional states possess neither. To address this concern, we condition the ability to make political decisions on the capacity of the state in the following manner.

30 Sikkink, Kathryn. The Justice Cascade: How Human Rights Prosecutions are Changing World Politics. W.W. Norton and Company: New York, 2011. 133-4.31 Ibid., 148-5632 Ibid., 144

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Figure 2: Capacity Limiting Choice

If a state has both resource and judicial capacities, then its leaders are free to select the value to attain in transition and implement the appropriate process. If one or both of these capacities are lacking, nearby states, NGOs, transgovernment networks, or international institutions may provide the support necessary to conduct a trial or TRC. Without the adequate resources or structure, a transitional state is powerless to adopt models of justice from its peers, no matter how much it may wish to do so.

The Political Choice Framework

With this foundation, we now propose a more comprehensive model for transitional governance that turns on a combination of two overarching factors: (i) the political choices of transitional state leaders, and (ii) the circumstantial capacities of a nation during its transitional phase. This model, the Political Choice Framework, is depicted below.

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Figure 3: The Political Choice Framework33

To best clarify this model, let us now explore the choices that political leaders undertake and the circumstances they may face in transitional governments, underscoring the factors that must be weighed in each choice.

Capacity: Resources to Hold Trials

An intuitive condition for trials to occur within a state is the presence of the basic necessities for trials – a venue to hold them, as well as the required professionals, such as judges and attorneys. If these basic prerequisites are not met, a country can still hold trials by investing the resources necessary for these fundamental needs. Yet this poses two problems for transitional states in particular. Having transition from a more autocratic regime, the state in question would likely not have the infrastructure necessary to conduct effective trials. Given that these states start on the path to democratization after a conflict or coup, however, it seems

33 For clarity, we have distinguished the different types of decisions and factors with various shapes. The endpoints are designated as hexagons on the flowchart. The two overarching factors, capacity and state interest, are represented by trapezoids (capacity is further broken down to resource capacity and judicial capacity). The dotted line connecting “partial trial” to the start point represents the subjective valuation of whether further justice or stability is needed after an ineffective trial, a decision made by the leaders and their constituents.

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reasonable that in most cases these transitional states would not have the resources to commit to fulfilling these basic requirements.

Neighborhood: Provision of Resources

We expand the significance that Sikkink attributes to the neighborhood in several senses. First, we stress the potential that the neighborhood has in providing the resources necessary to fill the basic requirements for trials in the event that a transitional state is unable to do so. Nearby states can pool resources, share venues, and create judicial networks that center on creating legal professions and fostering legal discussion.

The last consideration introduces the second way that we expand Sikkink’s conception of the “neighborhood.” NGOs can be just as essential as nearby states in providing or relaying the required resources to establish a legal infrastructure. In fact, the former would in many cases be more incentivized to provide this assistance. Transnational entrepreneurs may also provide assistance, seeing a long term profit potential by investing in the construction of legal venues or law schools in a state that has a high demand for these institutions during democratization.

State Interest in Transition

As aforementioned, government leaders face a choice of values to bolster in transition – justice and stability. While in theory these values can both be upheld, most political leaders see this choice as an “either-or” tradeoff, as the case studies will show. Also previously outlined were the several factors that can influence this choice, many of which have been cited by Sikkink: (i) the severity of violations, (ii) the power balance in transition, and (iii) the pressures from international institutions and NGOs to conform to rights laws and conventions.

Effectiveness of TRC

Since the purpose of a TRC is to achieve long-term stability, we measure the effectiveness of a TRC by this standard. Did the TRC bring peace, as in the South African case? Or did it lead to renewed violence, as had happened in Sierra Leone? In the case of an ineffective TRC, we added an arrow that leads back to square one, as a renewed conflict would presumably lead to another opportunity at transition down the road.

Other Viable Options

This circumstantial node gets at the point that the resources required for a TRC are often less than that of trials.34 If a state does not have the resources to prosecute, nor is the international neighborhood willing to provide these resources, a leader may in these narrow set of circumstances opt for a TRC as a “second-best” option. Alternatively, a transitional state may have other viable alternatives yet not pursue them due to other pressing issues, a scenario which we have coded as a “no” to other options.34 This statement is based on the uncontroversial assumption that TRCs can be staffed by any government or institution official, and does not require the legal expertise of judges and lawyers. TRCs are also not bound to a specific procedure, meaning that a commission cut short by a lack of resources can still accomplish much more than trials that are cut short.

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Intensity of Rights Violations

At this point of the Political Choice Framework, the state in question has already expressed a lack of capacity to hold neither trials nor commissions. If the violations are of high intensity, they may attract the international eye and garner intervention on part of the International Criminal Court. The ICC, exercising “complementary jurisdiction,” asserts the authority to conduct trials in the event that a state is incapable of holding trials.35 In the event that the violations are of minimal intensity, recovery may be left for extra-governmental organizations, a scenario that was encountered in the case of Mozambique.

Capacity: Effective Judicial Structure

As Sikkink has implied through her conditions of a justice cascade, specific “models” of individual accountability allow for the successful challenge of sovereign impunity. In many ways, these “models” require certain characteristics of the state’s legal structure to enable fairness and effectiveness in trials. Does the legal structure of the state afford basic rights to each citizen? Are these rights protected in the courts under the requirement of due process? Are trained and experienced judges and attorneys readily available for all involved parties? An answer in the affirmative is required for a state to have “judicial capacity” to hold trials.

Neighborhood to Provide Judicial Support and Reform

Sikkink mentions this condition directly, noting that in many cases “models” in the form of judicial structures are imported from other nearby states undergoing transitions.36 Contact with nearby transitional states encourages the diffusion of models that stress individual accountability and provide procedures for achieving this norm.

Just as with the resource capacity question, we expand this category to add NGOs and transjudicial networks. Not only can NGOs provide communicate the norms of accountability and procedures for securing these norms, but they are also often motivated to provide financial support to institute these procedures in the event that a nation lacks the ability to do so. While nearby countries can also do the same thing, it is important to emphasize that human rights networks tend to have more incentive to act. Additionally, the growing prevalence of transnational networks suggests that the conversations between judicial systems and the growing constitutional “cross-fertilization” may facilitate legal development in areas where it is currently lacking.37

Effectiveness of Trials

Having the capacity to conduct trials and effectively implementing this capacity are two very different things. Given that a state has the ability to conduct a fair and effective trial, further questions must be asked to assess the actual effectiveness of these proceedings. Was the

35 Slaughter, Anne-Marie. A New World Order. Princeton, Princeton Univ. Press, 2004. Pg. 149.36 Sikkink 247.37 Slaughter 69-71, 96-99.

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defendant tried under due process of law, or was the sentence effectively delivered before the trial began? Were the moderating judges impartial, or did they have a vested interest in ruling one way or the other? Were high-level as well as low-level officials put on trial? Were the sentences proportional to the convicted crime, and were they actually implemented?

In assessing the effectiveness of a trial, we require that (i) the defendant is guaranteed due process of law, (ii) the judges be impartial to the results of the case and their implementation of the law, (iii) high-level and low-level officials both be held accountable through trials, and (iv) a proportional sentence be delivered to convicted criminals and implemented within a reasonable amount of time.

Conclusions

A notable observation to make here is that Sikkink’s “justice” – securing the norm of individual accountability through an effective trial – appears as only one of many ends that the state can reach through transitional governance. As the figure shows the resulting policy of a transitional state largely turns on two factors: the resource and judicial capacities of the state, as well as the conscious state interest in transition, as evidenced through the choices of leaders.

As we note, many of these decisions are indeed influenced by the propositions that Sikkink derives from the Argentine experience. Combined with the multiplicity of potential results in democratization, this framework suggests that Sikkink’s “global approach” (i) gives undue prominence to factors that were generalized from a single case, and (ii) neglects the crucial role that political choices and take in determining the outcome of transitional governance.

Applying the Framework

In order to demonstrate how the Political Choice Framework better details how nations approach accountability in transition, we apply the framework to several groups of case studies. Grouping and generalizing specific case studies circumvents the problems experienced by Sikkink’s “global approach” in several ways. First, applying this framework to the state level does not assume any regional connections and therefore minimizes the risk of reaching a “cultural” excuse for any lack of justice. More importantly, the groupings, in underscoring commonalities between either the political choices made or the contextual circumstances of the transition, better embody a generalized process of “transitional government.” In doing so, the framework broadens the scope of factors faced by transitional governments while still leaving the door open for a justice cascade. We argue that such a framework allows for a more comprehensive examination of factors that influence the decisions of transitional leaders.

These five groups of case studies were determined by the extent to which they share a common (i) end result of transition, (ii) politically pivotal choice, (iii) or set of constraining circumstances. When a case group shares one of these three characteristics, we note the comparisons while focusing on any similarities or differences with the other two factors. So for example, if two countries share a same end result, we would focus on any convergence and divergence in the political choices or contextual circumstances in evaluating the cases.

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The five groups are as follows: (i) the switching of values in transition when one political choice went awry, as had occurred in Timor-Leste, El Salvador, and Sierra Leone. (ii) the end result of justice, as experienced by Argentina and Guatamala; (iii) the use of a TRC for stability, as was done by South Africa and South Korea; (iv) the delaying of a TRC to fulfill other political motives, as had been used in Ghana and Brazil; and (iv) the presence of politically-constraining poverty, as had persisted in Thailand and Mozambique.

Stability and Justice as Alternatives – Timor-Leste, El Salvador, and Sierra Leone

Before applying our model to general cases, we must first use examples to illustrate the perceived tradeoff of values on the part of political leaders in their choices. To do so, one must consider transitions in which both trials and TRCs have occurred. Therefore, we have selected the cases of Timor-Leste, El Salvador, and Sierra Leone. In each of these cases, one value was implemented as a part of political policy, and that process was widely perceived as unsuccessful. As a result, leaders opted to choose the other value in moving forward.

In two of the following cases, with El Salvador and Sierra Leone, the establishment of a TRC was perceived as ineffective, resulting in the use of a trial to hold the violators accountable. Meanwhile, Timor-Leste went from an ineffective UN tribunal to stability via a TRC. The diversity of these cases demonstrates two important points about the value tradeoff within our framework: (i) that the values are truly perceived as a tradeoff by state leaders when one method appears untenable or achieves undesired results, and (ii) that this political choice occurs across regions, and appears to have a more global character.

El Salvador

In El Salvador, the end of a brutal and protracted civil war culminated in the Chapultepec Peace Accords of 1992, a negotiation between the Salvadoran government and the revolutionary Farabundo Martí National Liberation Front (FMLN) that brought an end to 12 years of active conflict. The civil war had resulted in close to 90,000 civilian deaths. This pacted transition allowed the parties, including those implicated in egregious crimes, not only to demand self-amnesty but also to retain their posts in the government, military and courts as a condition for peace.38

Outlined in the accords was a provision to establish a TRC to examine the human rights violations perpetrated by both the military and revolutionary forces during the civil war. This TRC was instituted under the auspices of the UN and composed exclusively of foreign commissioners. Indeed, this entirely internationally controlled TRC was the first one of its kind instituted in Latin America.39 The Commission managed to collect, public and distribute specific information about the crimes committed and the names of the officials involved.

38 Popkin, Margaret. Peace Without Justice: Obstacles to Building the Rule of Law in El Salvador. Penn State University Press: University Park, 2000. 88-9.39 Sikkink, 92

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However, just five days after the release of the TRC’s report, the government passed a blanket amnesty law, shielding all of those involved in disappearances, torture, extrajudicial executions and murder from prosecution.40 In his address to the nation justifying the passage of this law, President Alfredo Cristiani announced, “we are again calling upon all sectors in the country to support a general and absolute amnesty, so that we can turn that painful page in our history and seek a better future for our country.”41 The IACHR’s issued several reports calling for a reversal of the amnesty law, which it asserted was in clear violation of the international agreement, but El Salvador repeatedly turned a deaf ear to these demands.42

As a result of this amnesty, several of the TRC’s recommendations that had been followed up by court convictions were reversed. For example, the two army officers, Colonel Benavides and Lieutenant Mendoza Vallecillos, who had been sentenced to 30 years in prison for their implication in the Jesuit murder case were prematurely released.43 Indeed, the only exemption to the far-reaching amnesty was the case of four American churchwomen raped and murdered by the National Guard. In this case, it was pressure from the part of the Reagan administration in the US that provided the impetus for further investigations. The US made the conviction of National Guardsmen a condition for further financial aid. In the end, however, the orchestrator of the murder, Major D’Aubuisson, was never tried.44

Given the general climate of impunity imposed by the blanket amnesty law, Salvadoran civil society remained frozen. Not only were the military officers responsible for past atrocities freely roaming the streets of El Salvador and in control of arms, but most court officials were corrupted as well. There was no independent entity to appeal to. US efforts to strengthen the Salvadoran judicial system were a tremendous failure. The Reagan administration poured millions of dollars into the Administration of Justice Project, one of the largest democracy assistance projects in Latin America, designed to overcome the lack of judicial direction, lack of opportunity to hear witnesses testify, and the possibility of arbitrary verdicts and jury tampering.”45 Thus, paralyzed by terror and a general belief that accountability was impossible, civil society failed to play a role in the push for prosecutions.46

It was not until 1998 that credible prosecutions of high-profile officials were initiated, but in foreign courts. Two Salvadoran former Ministers of Defense living in Miami, Generals Jose Guillermo García and Vides Casanova, were convicted in 2002 on charges of torture, assassination and crimes against humanity.47 In 2005, former Vice-Minister of Defense General Carranza was similarly sentenced in Tennessee.48 In 2011, a Spanish judge issued an

40 Popkin 148, 15741 Cristiani, Alfredo. "Address to the Nation by His Excellency the President of the Republic.” Speech. Delivered 18 Mar. 1993.42 Ibid., 156.43 “The FMLN Offensive, November 11, 1989.” Center for Justice and Accountability. Updated 2008. Accessed 31 Mar. 2012. <http://www.cja.org/article.php?id=471>.44 Popkin 50-1.45 Ibid., 56.46 Popkin,16147 “Romagoza Arce et al. v. Garcia and Vides Casanova.” CJA. Updated 2008. Accessed 2 Apr. 2012. <http://www.cja.org/section.php?id=82>.48 Hearn, Rebekah. “Memphian Carranza Found Guilty of Human Rights Abuses.” Memphis Daily News. Vol. 124(54): 19 Mar. 2009. <http://cja.org/downloads/Carranza_DailyNews_3.19.09.pdf>.

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unprecedentedly bold indictment and arrest warrant for 20 Salvadoran ex-military officers charged with crimes against humanity, including their participation in the Jesuit killings. In response to this arrest warrant, 9 of the 20 officials are currently being detained in El Salvador. Finally, in February of 2012, a former military officer also implicated in the Jesuit murders, Inocente Montano, was arrested on immigration fraud in Massachusetts. Ironically, he could face 40 years in prison for this crime, a sentence more severe than he would have received in El Salvador for war crimes.49 The recent proliferation of trials indeed signals a late and imperfect, but still significant, instance of the justice cascade.

Represented graphically, the Salvadoran case would be as follows:

Figure 4: The Salvadorian Case 50

Although the trials were taken in foreign courts, the trials are significant in that they reflect both the failure of the TRC to achieve stability and the changed domestic demands for justice, even against an established blanket amnesty. After realizing that the amnesty measures granted through restorative procedures were not satisfactory, the neighborhood took charge in embodying the desire of civil society for justice. It was not until the foreign courts took charge that the Salvadoran government realized that it ought to promote justice through arresting officials.

Timor-Leste

49 “Recent developments in Human Rights Trials in Latin America.” WOLA. Accessed 2 Apr. 2012.<http://www.wola.org/commentary/salvadorgovernment_holds_military_officers_in_custody_in_jesuit_case>.50 As depicted, the red path illustrates El Salvador’s choice of stability and their attempt at a TRC. When that TRC was ineffective, the Salvadoran elite chose justice, indicated by the blue path.

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If foreign involvement proved integral to the success of the justice cascade in El Salvador, it was perhaps the greatest obstacle to the proliferation of justice in Timor-Leste. International human rights organizations and NGOs remained largely ignorant of human rights transgressions that occurred half a world away—and when they did step in, tactics were misguided, and customs misunderstood to the detriment of Sikkink’s conception of justice. On August 30, 1999, Timor-Leste held the gaze of the world when it emerged from Indonesian oppression as an independent state. The region enjoyed a fleeting moment of intense global scrutiny and international engagement, rendered all the more striking by prior decades of universal neglect. The ruptured transition to democracy, following the death of nearly a third of the Timorese population at the hands of their Indonesian oppressors, was the product of a harrowing UN mission deployed to deliver the Timorese people to independence.51 In Resolution 1272, the United Nations Security Council, “Expressing its concern at reports indicating that systematic, stressing that persons committing such violations bear individual responsibility, and calling on all parties to cooperate with investigations into these reports,” demanded “that those responsible for such violence be brought to justice.”52 To that effect, on the first of January in 1999, the United Nations funded the creation of the Serious Crimes Unit (SCU) by the United Nations Transitional Administration in Timor-Leste (UNTAET)53. The unit was intended to investigate and prosecute those responsible for crimes against humanity in Timor-Leste during the final few months of Indonesian occupation.

The UN mandate specifically limited their definition of serious crimes to include murder, rape, and torture—a structure likely intended to limit the number of ensuing trials. Staffed by 111 UN-sponsored prosecutors, investigators, case managers, forensic specialists, translators, and mortuary staff, the SCU saw a huge influx of foreign advisors to aid the fledgling Timorese government.54 The cases were investigated and prosecuted exclusively by the Serious Crimes Investigation Units, and adjudicated by the newly created Special Panels for Serious Crimes Cases. The Special Panels were presided over by two international judges, as well as one Timorese judge, in an attempt at procuring optimum impartiality.

One distinct limitation of the SCU cases was their restricted jurisdiction—they were only granted the power to try and convict accused persons residing within the borders of Timor-Leste. Of the 95 indictments issued, and the 392 persons directly accused, only 84 were within the Timor-Leste’s borders, and subject to the jurisdiction of the Court. And yet, of the 84 defendants convicted, only 3 were acquitted on all charges—a testament either to the inherent bias of the Special Panels, or to the horrific crimes of humanity committed by the Indonesians. Those 308 remaining accused persons, almost exclusively Indonesian by nationality, were highly successful at finding refuge within Indonesian borders;the effectiveness of the trials was severely hampered.

51 Geoffrey Robinson, “If You Leave Us Here, We Will Die”: How Genocide Was Stopped in East Timor (Princeton: Princeton University Press, 2010). 52 Office of the General Prosecutor of the Republic Timor-Leste: Serious Crimes Unit53 “Resolution 1272”  United Nations Security Council.54 “The Center for the Study of Violence and Reconciliation.” Justice in Perspective: A Website on Truth, Justice and Reconciliation in Transition: East Timor. <http://www.justiceinperspective.org.za/asia-a-australasia/east-timor/serious-crimes-unit-scu-and-special-panels-for-serious-crimes-cases.html >

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The second crippling issue for the SCU—and perhaps the impetus for the first—was the marked lack of support from the governments of both Indonesia and Timor-Leste.55 Citing significant obstacles to their diplomatic relations, both countries refused to support the SCU investigations. The UN caved to domestic demand, and shut down the SCU process in May of 2005, following an evaluation of the trials’ progress—more than six hundred cases were pending, and the Timorese judiciary appeared incapable and unwilling to shoulder the burden of adjudicating the SCU’s complex cases. The UN Commission of Experts (UNCE), still championing an international push to resolve the Indonesian/Timorese conflict, recommended international criminal prosecutions if the Indonesian government did not directly prosecute those responsible for human rights transgressions in Timor-Leste.

Much more successful was the grassroots-initiated, domestically supported Commission for Reception, Truth and Reconciliation in Timor (CAVR), launched in August of 2000, and lasting through July of 2005. The Conselho Nacional da Resistencia Timorense (CNRT), displeased by the UN’s invasive, antagonistic tactics towards the Indonesians, established their Commission as an independent statutory authority to inquire into human rights violations committed on both sides of the conflict. They focused on a much longer period of time, dealing with crimes committed between April of 1974, and October of 1999, in an attempt to facilitate community reconciliation with justice for those who committed less serious offenses that the murder, rape, and torture focused on by the UN. The Commission was not designed to grant amnesty; rather it planned to issue a final report including recommendations for prosecutions to the Office of the President, the Parliament, and the UN.56 The functions of the CNRT’s commissions, namely, (i) truth seeking, (ii), community reconciliation, and (iii) recommendations to the government, were much less invasive, and much more in keeping with Timorese cultural traditions.

The final report, released to Timorese President Xanana Gusmao in October 2005, and later the Parliament and Prime Minister, was finally released to the public in January of 2006, following a national cry for public awareness. The report made various recommendations ranging from a governmental reparations program to the availability of exhumations and memorialization of those killed during the conflict.57 The Timorese people and government were more concerned with the concept of “healing” their broken nation, and raising awareness of Indonesian cruelty, than avenging the death of their citizens.

Following the CNRT, the governments of Timor-Leste and Indonesia launched a joint Commission on Truth and Friendship from 2005-2008, intended to reveal the truth and promote reconciliation between the two countries, focusing in particular the events prior to and immediately following the 1999 referendum. The Commission on Truth and Friendship (CTF) contained no mechanism for prosecutions or compensation; rather it remained occupied with recommending amnesty for those who revealed the truth and exhibited remorse for their crimes. The CTF hearings, held in Timor-Leste, were attended by individuals from NGOs, government institutions, the diplomatic coprs, and the media. To date, approximately 90 statements were submitted to the CTF, 8 of which were voluntary submissions.

55 Ibid. 56 Ibid.57 “East Timor and Indonesia Action Network.” Commission for Reception, Truth and Reconciliation in East Timor: Mandate. Accessed 2 Apr. 2012. < http://www.etan.org/etanpdf/2006/CAVR/01-Introduction_CAVR.pdf >

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With this process in mind, it is possible to depict the Timor-Leste case as follows:

Figure 5: The Timor-Leste Case

Although the 1999 UN mission in Timor-Leste was noteworthy in its direct involvement in such a traditionally closed-off region of the world, it purported a value in transition that did not coincide with that of the transitional leaders or the Timorese people. Knowing that justice would not resonate with the needs of the country, leaders of Timor-Leste chose to promote stability instead when they released the final report of the CAVR to the public rather than continuing with trials under the UN model. In an attempt to further the stability of the Timorese nation by reaching peace on an international stage—between Timor-Leste and Indonesia—the Timorese government solidified their commitment to stability at the expense of justice.

Sierra Leone

At the onset, it appeared that Sierra Leone was a country that was going to have an experience that settled on stability through a TRC. In reaching a peace agreement with the Revolutionary United Front (RUF), the 1999 Lomé Peace Accord prioritized stability by providing “complete and unconditional blanket amnesty for all crimes committed by the combatants since 1991.”58 Yet this move was problematic in several ways. For one, the amnesty was breach of the Constitution of Sierra Leone in that it afforded an illegitimate amount of power to the executive.59 Under the Constitution, individuals that have committed a criminal law must be prosecuted before being granted a pardon. The pre-emptive nature of the amnesty changed the definition of the presidential pardon in an unconstitutional manner.

58 Tejan-Cole, Abdul. “Sierra Leone’s ‘not-so’ Special Court.” Peace Versus Justice? The Dilemma of Transitional Justice in Africa. Ed. James Currey. Oxford: Boydell and Brewer Ltd, 2011, pp. 223-247. Pg. 223.59 Ibid 224-225.

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The accord also went wrong in presupposing that a pre-emptive amnesty would secure a peace agreement with the RUF. After less than four months, the RUF reneged on the Accord and resumed its attacks. In this case, the politically expedient choice failed to take hold.60 In response, President Kabbah chose to request that the UN Security Council establish a tribunal to hold the RUF accountable for war violations. On January 16, 2002, the Security Council and the government of Sierra Leone signed an agreement establishing the Special Court for Sierra Leone (SCSL).61

As both the competencies and composition of the SCSL show, the court was largely a joint effort undertaken by both the Security Council and the national government. Of the ten justices currently on the court, the government of Sierra Leone appoints half while the UN Secretary General chooses the other five. In presiding over the court, these justices rule over cases involving both international law (articles 2-4) and Sierra Leonean law (article 5).62

In an important way, the SCSL was successful in implementing redress for violations of Sierra Leonean law. Specifically, the prosecution “paid particular attention to gender-based crimes and from the outset ensured that they were thoroughly investigated, charged, and prosecuted. The prosecution made a concerted effort to deliver justice to Sierra Leonean victims of sexual violence.”63 Such measures provided significant redress for the 72% of women and girls that suffered human rights abuses during the war.

Yet perhaps the more known work of the SCSL concerns its competencies in international law. In being a partly international body, the SCSL asserted its jurisdiction in trying sovereign leaders, most notably Charles Taylor. As the Appeals Chamber ruled in 2004, Charles Taylor did not enjoy the privilege of immunity from court prosecution, as “the principle of state immunity derives from the equality of sovereign states and therefore has no relevance to international criminal tribunals which are not organs of a state but which derive their mandate from the international community.”64 While the specific ruling of the SCSL overstepped its original joint character of the court’s mandate, it did have the effect of initiating a chain of events that has the potential of resembling the justice cascade. On June 4, 2007 the case against Charles Taylor was opened in The Hague, with a verdict set for April 26, 2012.65

Within our framework, the path of Sierra Leone can be represented as follows:

Figure 6: The Sierra Leone Case 66

60 Ibid 225.61 Ibid.62 Statute of the Special Court for Sierra Leone. Accessed 17 April 2012. <http://www.sc-sl.org/LinkClick.aspx?fileticket=uClnd1MJeEw%3d&tabid=176>.63 Tejan-Cole 231.64 Ibid 232.65 Karimi, Faith. “Court to Issue Verdict in Charles Taylor Trial Next Month.” CNN US. Updated 2 Mar. 2012. Accessed 17 Apr. 2012. <http://articles.cnn.com/2012-03-02/africa/world_africa_netherlands-taylor-trial_1_war-crimes-charles-taylor-trial-sierra-leone?_s=PM:AFRICA>.66 The blue path represents the attempt at justice. Note that the endpoints are hollow, indicating that Sierra Leone has not yet reached a resolution. The verdict of the trial of Charles Taylor is set to come out April 26th, 2012.

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While the path to this trial was largely in the hands of the UN Security Council, it required that first appeal on part of Sierra Leonean president Ahmad Tejan Kabbah. This appeal was just much as a political choice as any of the other ones seen with other states, undertaken when the original attempt at stability did not take hold. The UN Security Council provided the neighborhood influence that was essential in implementing a judicial structure capable of carrying out effective trials. By these means, Sierra Leone may very well be the first African state to implement a procedure that closely resembles Sikkink’s form of justice.

Conclusions

While these three cases vary greatly with respect to geography and cultural norms, we see one important overlap. When one chosen value of transition – justice or stability – failed as a political choice, we see that the political leaders chose to embody only the other value in future policies, rather than bolstering both. Overall, these cases show that when enacted separately, TRCs and trials represent distinct political choices on the part of leaders. In the case groups that follow, we will consider the factors that influence this choice.

The Path of Justice – Argentina and Guatamala

Guatemala stands alone in our collection of cases in that it is the only country where the justice cascade has been clearly instantiated. In this sense, it is closely related to Argentina. However, there are important differences between the two countries in the path that they took to arrive at the end result of justice. Whereas the Argentine path was more direct, with the capacities and political predispositions in place, the case of Guatemala required substantial foreign assistance and an ineffective TRC to ultimately lead the government to pursue trials.

Argentina

Given the details of the Argentine case outlined above, we will apply these facts to our Political Choice Framework. The results are depicted below. Note that Argentina took the most direct path to the Justice Cascade on our framework.

Figure 7 – The Argentine Transition

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Guatemala

Instead of undergoing a stable military dictatorship as in Argentina, the Guatemalan experience involved a long and destructive civil war, lasting from 1960-1996. Nearly 300,000 people out of a population of 8.5 million were either killed or disappeared, making this civil war the most destructive and ruthless one in the region.67 During this time, there was a series of military coups backed by the Central Intelligence Agency in Washington DC, which considered the support of strong right-wing governments essential for the containment of communism in Latin America.68 In fact, there is evidence that the US government led several counter-insurgent death-squad missions, including “Operation Cleanup,” which resulted in mass disappearances and assassinations of peasant populations.69

Mejía hypothesizes that the scale of violence in Guatemala reached such an acute level that the public simply had nothing left to lose from organizing and confronting the government.70 Local NGOs and revolutionary groups united in putting up a popular resistance movement, including massive demonstrations, to prevent the passage of an all-encompassing amnesty such as the one instituted in El Salvador.71 Instead, amnesty laws were applied on a case-by-case basis and excluded cases of genocide and crimes against humanity.72

In Guatemala, the transition to democracy was unusually prolonged and erratic due to the perpetuation of violence, widespread corruption, and political instability. Almost 10 years after the drafting of the new democratic constitution, there was a short-lived but still notable regression when President Serrano dissolved Congress and declared a self-coup. Finally, in 1994 the new presidency under Ramiro de León allowed the UN to step in and broker a peace process between the government and guerrilla National Revolutionary Unit (URNG).73 The peace accords were complemented by the UN Security Council Resolution 1094, which ensured the military-backed implementation of the agreements.74

The accords also included the establishment of the Historical Clarification Commission, Guatemala’s TRC, also sponsored by the UN. The commission consisted of three commissioners, including a Mayan woman and two men, one of which was a native Guatemalan. The UN Secretary General appointed the moderator of the commission. On the whole, the TRC was seen as highly legitimate and impartial.75 Although the commission was not allowed to

67 WOLA Video68 Mejía, 5-8. 69 Ibid., 2070 Ibid., 14-671 Popkin 250, McSheery, 480. The evidence presented by these authors directly contradicts Sikkink’s claim on page 81 that repression was so severe in Guatemala that it effectively “silenced the human rights movement there.”72 Roht-Arriaza 314, WOLA Video. 73 Ibid.74 “Resolution 1094”  United Nations Security Council, 3732nd Meeting. 20 Jan. 1997. <http://www.un.org/Docs/scres/1997/scres97.htm>.75 “Truth Commission: Guatemala.” United States Institute for Peace. Accessed 12 Apr. 2012. <http://www.usip.org/publications/truth-commission-guatemala>.

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name particular offenders or recommend prosecutions, it published highly sensitive information that arguably roused popular demands for trials that would occur a decade later.

Dr. Victoria Sanford, Director at the Center for Human Rights and Peace Studies in the City University of New York, characterizes the prosecutions in Guatemala as a “fast moving train.” As of 2008, there had only been one prosecution, that of former military commissioner Candido Noriega in 1999. However, there are a number of recent developments. In 2009, ex-paramilitary officer Felipe Cusanero was convicted for crimes against humanity. In August of 2011, four former members of the Guatemalan Kaibiles special forces unit were sentenced to life (more than 6,000 years) in prison. Also in 2011, retired general Héctor Mario López Fuentes was arrested, put to trial and charged with genocide and crimes against humanity.76 Even more recently, in 2012, General Rios Montt, the dictator who orchestrated the most ruthless massacres between 1982-1983, was arrested and is now awaiting trial for crimes against humanity. Also in 2012, a Guatemalan tribunal issued arrest warrants for two military generals, one colonel and a police chief for their participation in the assassination of a Spanish priest, and four more Kabiles officers were sentenced to 6,000 years in prison collectively for carrying out the massacre in Dos Erres, a small village in the north of Guatemala.77

Figure 8 – The Guatemalan Transition

It is interesting to note that the Guatemalan case bears many resemblances to that of El Salvador, except at this point Guatemala has reached an end that more resembles a justice cascade. Combined, these cases reinforce the point that stability or justice is perceived as a choice among political leaders, even those within the South and Central American region.

Conclusion76 “Guatemala Arrests Former General Linked to Massacres.” Amnesty International. 20 Jun. 2011. <http://www.amnesty.org/en/news-and-updates/guatemala-arrests-former-general-linked-massacres-2011-06-20>.77 WOLA Video

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The case of Guatemala shows that there is not a single path to the justice cascade. Indeed, the Argentine example is unique in that all the conditions were present for trials to occur. By contrast, Guatemala initially had neither the resource capacity nor the political will to prosecute past human rights violators. A decade after transition, the picture looks much different. Since 2008, Guatemala has prosecuted the top-ranking officers of the military regime, as well as a number of lower-ranking officials for genocide and crimes against humanity.

The Path of Stability – South Africa and Thailand

South Africa’s political success in the use of a truth and reconciliation commission (TRC) in addition to trials has been lauded as a standard for other African countries in transitional governments. Thailand, too, exhibited clear political choices targeted towards the stability achieved through a TRC. In the following two cases, both countries possessed the capacity to hold trials, held a vested state interest in a stable transition, and were party to effective, stable TRCs. There is a single, crucial difference between the South African and Thai cases—South Africa saw a pacted transition, and Thailand experienced a ruptured governmental transition, though they both trekked the path to stability.

South Africa

Although the South African TRC was not the first of its kind, it was significant due to its effect of legitimizing the TRC as an effective procedure for transitional governments. Under the hand of the new president Nelson Mandela, the South African parliament passed the Promotion of National Unity and Reconciliation Act 34 in 1995.78 This act provided for the establishment of a truth commission composed of seventeen commissioners who were to represent the status quo party, the transitional government, and non-governmental organizations. Charged with uncovering “gross violations of human rights” in a political context, the commission took testimony from more than 21,000 victims and witnesses for investigations of atrocities that occurred between 1960 and 1994.79

Given the large scale of the operation, it was clear that South Africa possessed the resources to conduct trials to hold leaders under the apartheid accountable. Yet Mandela expressly opted for TRCs. This is perhaps due to the fact that the commission came from both opposing parties from the apartheid government, the National Party and the African National Congress, making the transitional government of South Africa a pacted transition. By its nature, a pacted transition focuses on achieving consensus in new governance through compromise.80 When related to truth and reconciliation commissions, a pacted transition leaves a larger space for political bargaining to take prominence.

Such a background leads into the second unique feature of the South African TRC – its granting of conditional amnesty. Through conditional amnesty, the commission granted pardons 78 Boraine, Alex. “South Africa’s TRC from a Global Perspective.” Peace Versus Justice? The Dilemma of Transitional Justice in Africa. Ed. James Currey. Oxford: Boydell and Brewer Ltd, 2011. Pp 137-152. Pg. 138.79 Ibid.80 Murray, Christine. “A Constitutional Beginning: Making South Africa’s Final Constitution.” Pg. 815.

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to those who fully and publically confessed to politically motivated violations of human rights.81 This term differs importantly from blanket amnesty, which guarantees a pardon for cooperation with the commission and the transitional government. In theory, conditional amnesty can still lead to human rights trials and, as Boraine argues, from the use of the conditional form “South Africa gained more information and more knowledge of what happed during the apartheid era from the perpetrators’ evidence… introducing an amnesty clause into the truth commission helps to prevent collective amnesia and also introduces the possibility of the reintegration of perpetrators into society.”82

Were traditional trials a viable option for the South African transitional government? While South Africa had both the financial and structural capacities to hold trials, it is impossible to conceive that both parties of the pacted government would have consented to trials. Such discontent from the ANC would have rendered compromise on a new constitution impossible, and would have completely undermined effectiveness of this pacted transfer.

It is important to note, however, that the conditional amnesty outlined in the competencies of the TRC allowed for trials for those that did not testify or those that provided false information. In a minor sense, it would appear that the conditional amnesty enabled South Africa to pursue both justice and stability simultaneously. Yet this thought is dismissed immediately when one realizes that these trials did not occur, particularly with the case of the senior officers and politicians of the apartheid government, who were often effective at eschewing testimony during the TRC.83

In effect, the South African TRC, widely viewed as successful, emphasized the importance of stability over justice. The decision to emphasize the value of stability in transition over the punishment of perpetrators was a conscious political move undertaken by Mandela and the new parliament in order to create a democratic state for all South Africans. One member of the South African TRC frankly stated that “the TRC approach trades justice for truth… it is surely for every nation to decide its own approach to these kinds of difficult situations.”84 While the TRC was not necessarily effective from the perspective of punishment, it was incredibly effective in establishing the truth about the horrors of the apartheid era in order to motivate a nationwide support for a democratic rule of law. It is this form of efficacy that would become a political tool for other countries that sought to learn from and apply the South African experience.

Figure 9 – South Africa’s Transition

81 Boraine 139.82 Ibid.83 Ibid 149-150.84 Moghalu, Kingsley Chiedu. “Prosecute or Pardon? Between Truth Commissions and War Crimes Trials.” Peace Versus Justice? The Dilemma of Transitional Justice in Africa. Ed. James Currey. Oxford: Boydell and Brewer Ltd, 2011. Pp 69-95. Pg 77.

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The South African case is truly a testament to the importance of political decisions as a key factor in dictating a nation’s path towards stability or justice. South Africa possessed both the resources to hold trials and the effective judicial structure necessary to hold domestic trials in the vein of the justice cascade, but it was the political choices of its leaders, emphasizing stability over justice, that dictated the South African path to a TRC.

Thailand

The Truth and Reconciliation Commission of Thailand, established in 2010 by Prime Minister Abhisit Vejjajiva with the Regulation of the Office of the Prime Minister on the Truth for National Reconciliation is unique in that it grew out of a ruptured transitional government. 85 The Thai conflict was rooted in the unequal distribution of wealth and power in the ruling elite, resulting in a recurring conflict between the ruling People’s Alliance for Democracy (the Yellow Shirts), and the rural poor of the United Front for Democracy against Dictatorship (the Red Shirts). There were two concentrations of violent conflict: the first in Northern Thailand, when the Ruling People’s Alliance for Democracy violently cracked down on Red Shirt demonstrations in Bangkok in April and May of 2010. In the southern provinces of Thailand, Malay Muslim separatist insurgents had been launching a series of attacks on government forces and offices beginning in 2005. The ensuing national reconciliation plan, forcefully promoted by Thai Buddhist NGOs, was established to investigate and report on the country’s recurring conflicts in South Thailand, with a special focus on the more recent 2010 demonstration in Bangkok.86

85 The Center for the Study of Violence and Reconciliation, Justice in Perspective: A Website on Truth, Justice and Reconciliation in Transition: Thailand. < http://www.justiceinperspective.org.za/asia-a-australasia/thailand/truth-and-reconciliation-commission-of-thailand.html >86 Ibid.

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Thailand’s TRC, though focusing first and foremost on national stability, lacked internal trust and openness among the Commission’s members, which curtailed objective truth-seeking.87 The TRC came on the heels of an abandoned National Reconciliation Commission (NRC) held in 2005-2006 after the initial violent conflicts along Thailand’s southern borders. The original NRC, an unwieldy, 50-member body that lacked clear goals, was postponed until 2010, where it resumed truth-seeking with a renewed vigor following the Red Shirt protests in Bangkok. The focus of Thailand’s resurrected TRC was again on stability, and followed a direct path along the Political Choice Framework.

Figure 10 – Thailand’s Transition

Conclusion

That Thailand’s ruptured government, though possessing the capacity to hold trials, had a distinct political interest in stability indicates that a pacted transition is not a prerequisite of a truth and reconciliation commission. A national grassroots movement, spearheaded by the Yellow Shirts and a number of oft-religiously minded NGOs provided the base for Thailand’s ruptured government to pursue stability instead of justice. Overlooking the pacted transition /ruptured transition dichotomy between South Africa and Thailand, the two countries follow a direct path along the Political Choice Framework—though possessing the proper resources to

87 McCargo, Duncan. “Thailand’s National Reconciliation Commission: a flawed response to the Southern Conflict.” Global Change, Peace & Security: formerly Pacifica Review: Peace, Security & Global Change, Volume 22, Issue 1. La Trobe University: Routledge, 2010.

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hold trials and an effective judicial structure, the political choices of the countries’ leaders chose to pursue a vested interest in national stability rather than Sikkink’s conception of justice.

Sequencing Stability as the Politically Expedient Choice – Ghana and Brazil

Ghana and Brazil both made early decisions to rule out prosecutions and stalled at instituting TRCs until this became politically propitious. These cases demonstrate that countries with the capacity to hold trials may actually choose to pursue stability and settle for a TRC. Thus, they lend support for our argument in the Political Choice Framework that leaders play a prominent role in deciding between pursuing the course of stability versus that of justice.

Ghana

After its four major coups d’état in 1966, 1972, 1979, and 1981, Ghana drafted a transitional constitution in 1992. This constitution, for the sake of stability in transition, made it illegal for the judiciary or any tribunal to question actions taken in the name of the oppressive military regimes and further prohibited the courts from providing redress to alleged victims of these military governments.88

It was not until 2001 that the Ghanaian president began to call for a national commission that would allow the victims of military regimes to publicly state their grievances. As Kenneth Agyemang Attafuah emphasizes, this decision was one of timing:

The creation of the NRC had been promised in the 2000 manifesto of the ruling National Patriotic Party. President John Agyekum Kufour reiterated this promise in his first inaugural speech as president on 7 January 2001. He observed that Ghana had gone through turbulent times, that the country’s greatest enemy was poverty, and that the fight against this would start with reconciling Ghanaians and forging ahead in unity, appeasement, and forgiveness.89

It was in this background that Kufour chose to pass the National Reconciliation Act 611 of 2002, which provided for a national reconciliation commission charged with investigating past military government atrocities, naming responsible individuals, and suggesting redress measures for victims. 90

Ghana desired national unity as a means for combating widespread poverty. That is not to say that stability was not on the Ghanaian agenda – in fact, one of the main justifications that underpinned the TRC was a growing need to break the cycle of vengeance and vendetta that had

88 Attafuah, Kenneth Agyemang. “A Path to Peace and Justice: Ghana’s National Reconciliation Commission in Retrospect.” Peace Versus Justice? The Dilemma of Transitional Justice in Africa. Ed. James Currey. Oxford: Boydell and Brewer Ltd, 2011. Pp 187-201. Pg. 188-189.89 Ibid 189.90 Ibid 190.

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plagued Ghana’s political sphere after independence.91 In both cases, the decision to initiate a TRC versus trials also had the side benefit of consolidating the power of the new executive, as they tailored the reconciliation process to address the national issues that they thought were important at the time.

Given the scope of the TRC, which lasted over two years, received over four thousand petitions, and heard more than eighteen hundred testimonies, it is clear that Ghana did possess the resources required to conduct full-scale trials.92 In this sense, Ghana seemed to have the supply to initiate trials, yet the country did not seem to have the demand. In fact, one of the main criticisms of the Ghanaian TRC focused on its questioned necessity. Given that the violations in Ghana were of a low intensity, relatively speaking, it seems reasonable to assume that the further step from a TRC to trials would have garnered even more criticisms on account of proportionality.93

The most obvious and significant difference in the Ghana case was the fact that Ghana experienced a ruptured transition.94 In terms of the political choices made in transition, we see that the ruptured nature of the transition opened the door to the use of sequencing – the strategic determination of when to initiate a trial or TRC. President Kufour chose to initiate the national reconciliation commission nine years after the enactment of the new constitution. By that time, much of the transitional phases enacted by the constitution were over, and, as a result, the commission had the effect of furthering a democratic agenda rather than establishing one.95 The use of sequencing also gave Kufour additional flexibility in promoting unity towards a specific national issue.

As a ruptured transition, Ghana would not have faced such large effectiveness issues if its leaders had opted for a trial. Indeed, the fact that one party facilitated the transition would have made it easier to organize proceedings against the losing factions that engaged in rights violations. While trials were a choice on the table then, it seems that leaders steered clear of this option to avoid the proportionality criticisms explained above. In terms of our political framework, the path taken by Ghana is depicted below.

Figure 11 – Ghana’s Transition

91 Ibid 188.92 Ibid 190-191.93 Ibid 198.94 Ibid 20095 Ibid.

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Brazil

Whereas in Ghana the TRCs were held nine years after the transition to democracy, it took the Brazilian government more than twenty years to do likewise. Only in November of 2011 did President Dilma Rousseff sign a law instituting a TRC to investigate past human rights abuses, including those perpetrated during the military regime. It is not difficult to image the motives behind this decision, as Rousseff was just reelected for the Presidency on February of 2012.96 However, Rousseff assures that the findings of the commission will not lead to prosecutions: “For generations of Brazilians who died, we honour them today not through a process of revenge, but through a process of building truth and memory.”97 This statement, coupled with a recent Supreme Court decision to uphold the amnesty law, signals that the Brazilian government is intent on abiding by the amnesty law,98 which makes it unlikely, though not impossible, that the justice cascade will take hold in this country anytime soon.

Brazil is an exceptional case in that it is the only country in Latin America that underwent a transition from authoritarian to democratic rule in the late twentieth century but has completely avoided any type of prosecution thus far. The Armed Forces sized power through a coup in 1964 and ruled until 1985 with the election of José Sarney and a return to civilian government. After its success in the Paraguayan War, the military had acquired an aura of legitimacy and become increasingly politicized. As in Guatemala, the Armed Forces in Brazil had secured the full military and financial support of the US government, which was intent on crippling the incumbent President João Goulart, a communist sympathizer.

Throughout its 20 years of rule, the military regime in Brazil grew progressively repressive in its domestic policy. It also became involved in Operation Condor, a regional effort to crack down on opposition to the new right-wing military regimes, including those in Argentina, Uruguay and Chile.99 Disappearances, tortures and murders were significantly less widespread than in other Latin American countries, however.100 On the whole, there were no more than 21,000 victims of human rights abuses.101 Moreover, the military regime did enjoy periods of civilian popularity, especially during the 1970s economic boom (the “Brazilian Miracle”), which allowed the officers to impose conditions on their abdication of power. In 1979, a mutual amnesty was passed between the military and the civilian politicians who had committed political crimes.102 In return for its subordination to the civilian government, the military obtained assurances that no investigations into the disappeared or dead would be pursued. 96 “Rousseff Wins Brazilian Election.” BBC News. Updated 8 February 2012. Accessed 22 April 2012. <http://www.bbc.co.uk/news/special_reports/brazilian_elections/>.97 “Brazil’s Dilma Rousseff Approves Truth Commission.” BBC News. Updated 18 November 2011. Accessed 22 April 2012. <http://www.bbc.co.uk/news/world-latin-america-15799705>.98 “Brazil Court Upholds Law.” Amnesty International 30 Apr. 2011. <http://www.amnesty.org/en/news-and-updates/brazil-court-upholds-law-protects-torturers-2010-04-30>.99 See Nino, Carlos Santiago. Radical Evil on Trial. Yale University Press: New Haven, 1998. See also Valente, Rights-South America: Chipping Away at Impunity. Inter Press: Buenos Aires, 2000. 100 Nino, 33-4101 Cleary, Edward. The Struggle for Human Rights in Latin America. Praeger Publishers: Westport, 1997. 59.102 Ibid.

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Civilian administrations since then have respected the amnesty and have issued financial reparations in place of prosecutions for those harmed by the military government.103 The Inter-American Court of Human Rights has repeatedly demanded that the amnesty law be annulled and that the government conduct criminal investigations into the human rights abuses of the military regime.104 This advice has so far not been heeded.

The transition for Brazil has been depicted below. Note that, since the TRC has not yet ended, the path leading from the effectiveness question is inconclusive. The TRC is set to finish in late 2013.

Figure 12 – The Transition of Brazil 105

Conclusions

Both Ghana and Brazil made the delayed political choice to institute TRCs as a means to secure long-term stability, although this choice happened much earlier in Ghana than in Brazil. These examples demonstrate how government officials can invest in TRCs to advance a political agenda geared towards national stability. Notably, this choice can occur after both pacted and ruptured transitions. In Ghana, a ruptured transition opened the door to the use of sequencing, i.e. the strategic determination of when to initiate a trial or TRC. Despite this difference, there were important similarities between the two countries, namely the history of relatively low repression record and the acceptance of amnesty, which allowed both to achieve stability without trials.

103 Ibid., Sikkink 144104 Sikkink 147105 In this diagram, we left the effectiveness of the TRC as an open possibility, as the commission has yet to conclude its investigation.

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Capacity Constraining Choice – South Korea and Mozambique

If Ghana and Brazil turned to TRCs as a politically motivated push for stability, South Korea and Mozambique were thrust into a TRC and private reconciliation trials, respectively, by circumstantial factors. Both cases are characterized by a distinct lack of resurces to hold trials, and the absence of a neighborhood to provide those necessary resources.

South Korea

South Korea underwent a pacted democratic transition in 1987, a few decades removed from the settlement of the Korean War. Enticed by Soviet coupling of hegemonic ambitions with a commitment to Marxist ideologies, the Chinese Communist Party (CCP) joined forces with the Soviet Union—and thus their North Korean allies—against South Korea in the early 1950s. In the eyes of the world, the Korean War was no mere civil conflict; it was elevated to an unprecedented intensity by a Sino-Soviet-U.S. duel for global hegemony. Yet for the South Koreans, the clash was but one of a series of oppressive, militaristic offenses against their country, and came second in impact to the Japanese occupation of Korea at the beginning of the 20th century. 106 Thus, on May 31, 2005, South Korean President Roh Moo-hyn established the Truth and Reconciliation Commission, Republic of Korea (TRCK) in an attempt to generate an accurate account of the past, “restore honour” to victims, aid in the reconciliation process and promote national unity, with a focus on the aftermath of the Japananese occupation of Korea, the Korean War, and the authoritarian regimes in power after the war.107 The TRCK was focused not on Sikkink’s normative views of justice, but on stability, aimed at healing a nation, and moving forward with the country’s remaining lives.

It is important to note that the TRCK, operating without the influence of a nearby hegemon or international NGO, functioned under the direct control of the South Korean President, was conducted according to the norms and desires of South Korean Society, and was staffed entirely by Korean citizens. The TRCK was composed of fifteen commissioners, eight of whom were recommended by the National Assembly, four of whom were appointed directly by the president, and three of whom were nominated by the Chief Justice of the Supreme Court. There was no official international involvement in the commissions—the TRCK operated solely for the benefit of the Korean people—although domestic concerns still existed.108 In its final years, newly elected South Korean President Lee Myung-bak vocally doubted and criticized the necessity of the TRCK. The final TRCK president himself, Lee Young-Jo, was sued for attempted suppression of the English translation TRCK write-up, reportedly due to grammatical errors, but speculatively stemming from unnamed political or ideological reasons. Critics accused Lee of playing to foreign audiences, in an attempt to portray Korea in a better light. 106 Thomas J. Christensen, Worse Than a Monolith: Alliance Politics of Coercive Diplomacy in Asia. (Princeton University Press, Princeton. 2011) 60.107 Kim Dong-choon and Mark Seldon, “South Korea’s Embattled Truth and Reconciliation Commission: An interview with Kim Dong-choon, recently retired Standing Commissioner of South Korea’s Truth and Reconciliation Commission” in The Asia-Pacific Journal: Japan Focus (2010) < http://www.japanfocus.org/-Kim-Dong_choon/3313>108 The Center for the Study of Violence and Reconciliation, Justice in Perspective: A Website on Truth, Justice and Reconciliation in Transition: South Korea. < http://www.justiceinperspective.org.za/asia-a-australasia/south-korea/truth-and-reconciliation-commission-republic-of-korea.html>

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Andrew Salmon, a correspondent for the Korea Times, “pointed out that the 21st century Korea is still an ideological battle ground, saying, ‘The question facing the commission is whether it can staff itself with professionals whose personal ideologies do not affect their work.’”109

That the TRCK was a political decision aimed at proving to the world that South Korea could hold a truth and reconciliation commission in the objective interest of stability is not entirely plausible. Part of the TRCK’s preoccupation with truth-seeking and truth-telling over holding perpetrators accountable stemmed from legal issues, rather than a documented political preference for stability. Most criminal investigations have a statute of limitations of fifteen years, so most perpetrators of crimes dating back to the twentieth century could not legally be held accountable for their crimes. 110 Might South Korea have leaned towards a transitional state interest in justice, had the statute of limitations not existed, or had the scope of the TRCK been more focused? South Korea was quite clearly lacking in the resources and effective judicial structure to hold objective trials, and would have been unlikely to successfully pursue Sikkink’s justice cascade without foreign financial and judicial structural aid.

The final commission received mixed reviews—while the results indicated that the TRCK accepted 10,992 claims, it followed up on only 4,794 of these claims. The full impact of the commission was limited largely by budget issues. Had international organizations, the UN, or additional domestic NGOs been involved in the TRCK’s truth-seeking process, budget constraints would have likely fallen to the wayside in terms of limiting factors. Without a solid budget, and having lost the full backing of the Korean government by the end of the first decade of the twenty-first century, the TRCK proved unable to force witnesses to testify, offer immunities for testimony, or hold perpetrators legally accountable.111

Figure 13 – The Transition of South Korea

109 Lee Tae-hoon, “Forbidden Book Haunts Truth Commission,” in The Korea Times. (April 5, 2010) < http://www.koreatimes.co.kr/www/news/special/2010/04/180_63706.html >; The Center for the Study of Violence and Reconciliation, Justice in Perspective: A Website on Truth, Justice and Reconciliation in Transition: South Korea. < http://www.justiceinperspective.org.za/asia-a-australasia/south-korea/truth-and-reconciliation-commission-republic-of-korea.html> http://www.justiceinperspective.org.za/images/south_korea/TRC%202008.pdf110 Truth and Reconciliation Commission, Republic of Korea. < http://jinsil.go.kr/english/index.asp > 111 Choe Sang-hun, “Unearthing War’s Horrors Years Later in South Korea,” in The New York Times (3 December, 2007). < http://www.nytimes.com/2007/12/03/world/asia/03korea.html?scp=2&sq=South+Korea&st=nyt >

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South Korea’s move towards a TRC was motivated not only by a political decision to reconcile international differences, restore honor to victims of human rights violations, and promote a sense of national unity and stability, but by a lack of capacity and nearby neighbor with a vested interest in holding trials. The TRCK was claimed by the Korean government as a political decision, but was equally motivated by a deficiency of resources.

Mozambique

Mozambique had a status quo that was very similar to that of other countries in the region. Having gained independence from Portugal after a long war in 1976, the country immediately found itself in a civil war between the Liberation Front of Mozambique (FRELIMO) and the Mozambican National Resistance (RENAMO), which lasted sixteen years.112 The United Nations peacekeeping efforts were instrumental in ending the civil war. The mission in Mozambique, ONUMOZ, encouraged democratic transition through establishing a heterogeneous army and converting RENAMO into an active political party.113

After UN forces left, the new political parties were left to their own devices in reshaping the government and addressing the past. As Hirsch points out, blanket amnesty and impunity were conditions of the peace agreement, as the focus of the transitional government was on that of creating stability in a context of widespread starvation and devastation.114 Since the nation had been completely depleted of resources, reparations

112 Hirsch, John L. “Peace and Justice: Mozambique and Sierra Leone Compared.” Peace Versus Justice? The Dilemma of Transitional Justice in Africa. Ed. James Currey. Oxford: Boydell and Brewer Ltd, 2011. Pp 202-219. Pg. 205.113 Ibid 203.114 Ibid 206-207.

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and redress seemed an unrealistic expectation for the public. Rather, the end of the war alone was viewed as a positive step forward.115

The inability of the government to take an active role in reconciliation left this duty to the church and its use of traditional healing rituals. One community achieved reintegration into society by rituals involving the casting of weapons and the burning of army uniforms, a ceremony that had a highly symbolic and public character.116 The Protestant and Catholic churches also organized grassroots movements that centered on themes of disarmament, peace, and the integration of wartime resources into more artistic endeavors.117

Given this background, it is clear that one cannot even consider a counterfactual for the case of Mozambique. The transitional government was forced to inaction by necessity – after more than a quarter-century of conflict, the country simply did not have the resources to undertake the investigations necessary for trials or truth commissions. This fact shaped public demands as well, rather than airing their grievances to government institutions, those affected by the past atrocities looked to the procedures and rituals of other, more resourceful, bodies.

Figure 14 – The Transition of Mozambique

The Mozambique case is unique in that its private reconciliation trials did not hinge on political decisions. In Mozambique’s transition to democracy, its impoverished transitional government did not have the capacity to make a political choice, and lacked the neighborhood assistance necessary to move towards a domestic or international trial. Instead, the country

115 Ibid 207.116 Ibid.117 Ibid 208.

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successfully utilized more traditional and religious rituals and reconciliation processes in order to address past atrocities and move forward to democratic governance.

Conclusions

Both South Korea and Mozambique opted for stability techniques – via a truth and reconciliation commission and private reconciliation rituals, respectively – less out of a political decision than out of necessity. That both cases were thrust into stability rather than justice does not necessary indicate a lack of political motive—without a vested interest in stability, neither country would have moved forward with the reconciliation process. The two countries, lacking in resources and unaided by their neighborhoods, nonetheless pushed to hold some form of reconciliatory procedures to increase the stability of their nations.

Comparative Analysis – A Regional Phenomenon?

An additional benefit of the Political Choice Framework is that it lends itself to a regional comparison, which we will briefly consider in this section. Stepping back to take a look at the global picture, we have plotted the occurrence of trials, TRCs, or both processes on a world map, depicted in Appendix A. We see that, regionally, some areas experience convergence in end results while others face a divergence of experiences.

Since our framework focuses on domestic choice and constraints, a regional analysis would intuitively involve aggregating these national cases by region. The approach is not so simple, as in some cases the studies selected are not “representative” of the region as a whole. This particularly applies in Africa, where most states do not have the capacity to even consider trials. With this possibility in mind, we will, when necessary, examine international and regional institutions insofar as they demonstrate regional trends.

Central and South America

Contrary to the impression of uniformity that the world map diagram invokes, the region of Central and South America is one of the most diverse in terms of paths followed toward stability or justice. In general, however, the region displays an orientation toward the justice cascade, with the exception of Brazil.

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Figure 15 – Central and South American Region 118

We saw that Argentina and Guatemala arrived at the same end result, namely effective trials, but did so by means of very different paths. Moreover, the time lag in the pursuit of justice in Guatemala was much greater. This suggests that late-justice is possible and that conclusions about the probability of a justice cascade in countries of this region should not be made too quickly.

Guatemala and El Salvador are very similar in the sense that they were influenced by foreign actors and established TRCs before attempting prosecutions. Considering this likeness, one could predict that El Salvador will eventually experience a full-fledged justice cascade of the sort that Guatemala is in the process of experiencing. Meanwhile, Brazil was the outlier in that there was no neighborhood component to influence the course of events and in that prosecutions were completely avoided. It is important to stress that the lack of justice cascade in this case is not due to capacity constraints, but rather to a political decision to secure stability through a TRC.

Overall, countries in Central and South America diverged sharply in their paths toward justice or stability, but this divergence was not due to issues related to capacity. In any cases where capacity was an issue, this region had the neighborhood – through either the United States or the UN – to provide the necessary resources. Therefore, any divergences in the end result

118 In these comparison figures, we represent slight outliers from the trend with dashed arrows and hollow boxes. In this case, the tendency to use a TRC is an outlier from the final result, with the potential exception of Brazil’s case.

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were largely a result of divergences in political choices among the countries in the region. Against Sikkink’s claims, countries did not unconditionally imitate one another’s models in this region.

Africa

As aforementioned, the case studies considered in this report can largely be considered the exception to the rule. This is because, overall, most African states, in lacking the capacity and institutions to hold trials, either represent the case of Mozambique or, if the violations have been severe enough, have been referred to the ICC. While it is often difficult to elucidate cases without a record of political activity, the latter scenario gives us a standard by which to measure the extent to which African countries are limited by a lack of resource capacity. To this end, we will briefly consider ICC involvement in Africa insofar as it demonstrates this general lack of capacity.

In recent years, the ICC has increasingly become involved in the affairs of African states. As a congressional report on the ICC in Africa reveals, the international court has opened 23 cases in connection with five different African states – Kenya, Sudan, Uganda, the Central African Republic, and the Democratic Republic of Congo.119 Such stepped up involvement has drawn criticisms that allege a selection bias on part of the ICC Prosecutor. President Paul Kagame of Rwanda once called the ICC a form of “imperialism that seeks to undermine people from poor and African countries, and other powerless countries in terms of economic development.”120 Even the African Union has shown opposition to the jurisdiction of the ICC, with Jean Ping, president of the AU Commission, accusing the ICC of hypocrisy in its selection of cases.121

While these accusations do suggest a negative view of the ICC efforts in Africa, these claims must be caveated with the fact that they were made by leaders with a vested interest against ICC involvement. President Kagame, as the state leader of Rwanda during the ICTR, would have likely preferred taking a more strict “victor’s justice” into his own hands. Further, Jean Ping would undoubtedly link increased ICC involvement in the African region as an indirect signal of the current failings of the AU.

More significantly, the increased involvement of the ICC in Africa demonstrates that most African states do not currently possess the capacity to hold their own domestic trials. The ICC employs “complementary jurisdiction,” which vests national courts with the primary access to jurisdiction with the ICC taking over in the event that the state fails to execute its own trials.122 By logical extension of this principle, the fact that ICC has exercised considerable jurisdiction in the African region suggests that most domestic efforts at trials have been ineffective or nonexistent.

119 Arieff, Alexis, Marjorie Ann Brown, Rhoda Margesson, and Matthew Weed. “International Criminal Court Cases in Africa: Status and Policy Issues.” CRS Report for Congress. 22 Jul. 2011. Pp. 1-32. Pp. 5-6.120 Arieff 26.121 Ibid.122 Slaughter, Anne-Marie. A New World Order. Princeton, Princeton Univ. Press, 2004. Pg. 149.

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With this trend in mind, it seems appropriate to categorize the current African situation as follows:

Figure 16 – African Trend in Transition 123

As previously mentioned, the case studies in which the country had enough resources to conduct trial exist as an exception to this trend. However, for the purposes of our framework, it was necessary to consider these cases for precisely that reason. Only the countries that were the exception were of interest because they had the capacity to make a political choice in transition.

Asia

Given the low frequency of procedures in the Asian region, it seems reasonable that a representative of transitional governments would, at this point, be an aggregate of the domestic processes that have taken place. The overall trend is depicted below.

Figure 17 – Asian Trend in Transition

123 Since all of the case studies, except Mozambique, are outliers from the trend, they do not appear in the overall figure. One may conceive TRCs becoming the trend given the heterogeneity of ethic groups and their propensity to pacted transitions. To date, however, this trend has not occurred on the regional level.

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Timor-Leste, South Korea, and Thailand all pursued truth commissions more in an attempt to reconcile international differences, restore honor to victims of human rights violations, and promote a sense of national unity and stability than in a search to bring their oppressors to justice. As the Political Choice Framework above indicates, the three Asian countries considered in this case study all leant towards stability at the expense of justice. Sikkink’s conception of the justice cascade has yet to reach East Asia, which, as a general region, pursues truth and reconciliation commissions—regardless of capacity to hold trials—in a quest for stability. While the Asian countries do differ in their capacity and proximity to a neighborhood capable of providing the resources for trials, the political decisions of leaders in Timor-Leste, South Korea, and Thailand proved a general trend towards truth and reconciliation commissions.

Implications of the Political Choice Framework

The Political Choice Framework that constitutes the crux of our argument is motivated by the finding that the end results of transitional governance depend on two factors: (i) the resource and judicial capacities of the transitional state, and (ii) the state interest in either stability or justice. Our case studies demonstrate that there is a multiplicity of end results, including stability through a TRC, private reconciliation rituals, and full or partial trials. This evidence goes contrary to Sikkink’s suggestion that countries the world over are inexorably led to adopt the justice cascade.

Shifting to a regional perspective, a nuanced examination of various case studies shows that countries within the same region often diverged sharply in the paths that they took toward stability or justice. Considering the world diagram (appendix) in itself would not have allowed us

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to reach such a conclusion. The Political Choice Framework, in outlining the different paths toward the variety of possible end results, more accurately represents the regional trends, if there are any. Overall, our evidence suggests that the justice cascade is neither global nor conclusively regional.

As it stands, the justice cascade is only one possible end result of transition. This is not to say that the cascade cannot be realized. However, active efforts must be directed toward (i) addressing capacity issues that curtail the political choice, and (ii) proliferating Sikkink’s conception of a “legal steambed” that promulgates the norms of justice and individual accountability. This includes channeling financial resources and institutional expertise effectively, as well as encouraging civil society groups to rouse public support for accountability through prosecutions. Thus, the Political Choice Framework is a model that is more global in character as it seeks to generalize the political choices taken and circumstances faced in transitional governance.

Appendix A – Global Occurrence of Trials, TRCs, or Both 124

124 In this diagram, squares represent TRCs, triangles represent trials, and circles represent the occurrence of both. South Africa was changed to just a TRC since the trial itself was grossly ineffective.

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