chapter  4
Transitional Justice
Pages 20

The previous chapter built a framework of justice that revolved around three central tenets: (i) recognition – how individuals are identified or recognized in terms of their experiences, histories, or status; (ii) representation – the ability of individuals or groups to participate in democratic processes and institutions; and (iii) redistribution – the ways in which status disparities are addressed to ensure that each human being can operate on a par with others, as a peer, in social life. This chapter builds on these ideas by evaluating how justice is secured for torture victims in transitional states. Roht-Arriaza (2006) notes that anything that is devised to deal with past

violations, from a renewed school curricula to the making of memorial quilts to museum exhibits that focus on a painful past, can be viewed as part of a transitional justice framework. These activities demonstrate how widely transitional justice thinking permeates into cultural, social, and political life. This book takes a more confined view by focusing on just two aspects of transitional justice – criminal trials and truth commissions – that frequently illustrate ‘top down’ processes to deal with violations like torture. This narrowed approach means that the broader fabric of transitional justice initiatives, including the plethora of ‘bottom up’ measures that emerge in transitional states, will inevitably be omitted. Nonetheless, the official mechanisms of truth commissions and trials have

begun to dominate the transitional justice landscape. These bodies are often deemed to offer significant potential in terms of securing a more peaceful future for victims and their societies (Boraine et al. 1994; Hayner 2001; Kritz 1995). They are commonly the first step to open discussions and facilitate further responses to gross human rights violations. This chapter highlights that trials and truth commissions can facilitate

justice for torture victims; however, this success is mostly connected to how they provide a partial recognition of violence, victims, and perpetrators. The recognition built through these transitional justice bodies tends to be simply and differentially applied, and does not often reflect the socio-economic, or other structured, injustices that regularly bolster human rights violations in the first instance (Stanley 2005b). This, it is argued, can prove problematic as the promotion of recognition as an issue of identity, and not status, ensures

that those who have suffered torture are dissociated from their social and structural location (Fraser 2003). Moreover, the chapter details that transitional justice mechanisms can also

shut down representational justice.1 As a result of institutional deficiencies or rules, certain victims come to be excluded from processes of justice, and institutions do not often provide ‘safety nets’ for those victims who do not have the capability to participate. Such problems dovetail with more personal decisions – by victims, perpetrators, or bystanders – on whether to engage with transitional justice. Further, it is apparent that transitional justice bodies can also inhibit the

occurrence of redistributive justice; that is, they do not necessarily facilitate social, economic, or political change. Victims often find that they are subject to further denigration or control and that their needs are ultimately downplayed during or following these mechanisms. For victims, these limitations may well undermine transitional justice attempts altogether. They also mean that victims’ limited abilities to participate in institutional life or to lead a ‘good life’ are hampered. A final point on the structure of material: given the deep interconnections

between representational justice and issues of recognition and redistribution, this chapter weaves the analyses of the former into discussions of the latter. This is undertaken to show how the concerns of participation are central to how, or whether, people come to be identified as torture victims, and how they are assisted to participate as a peer among others. It is also done to confirm that these tenets of justice are not mutually exclusive (Fraser 2003).

Lawrence Weschler (Harvard Law School 1997: 26-27) highlights a dynamic of torture in which the torturer tells the victim: ‘Go ahead and scream. Nobody will hear you; nobody will ever know what’s going on in this room.’ The imposed secrecy, the not knowing or forgetting of torture, is a means to ‘demoralize the victim’ and to make them feel utterly alone; however, it also gives the torturer ‘confidence’ that they will never be caught, shamed, or punished (ibid.). Exposing such violence and providing some redress in times of transition, from a repressive regime to a more democratic situation, is the basis of transitional justice (Fletcher and Weinstein 2002). Transitional justice invokes legal and social responses; it ‘ … includes that set of practices, mechanisms and concerns that arise following a period of conflict, civil strife or repression, and that are aimed directly at confronting and dealing with past violations of human rights and humanitarian law’ (Roht-Arriaza 2006: 2). It is an attempt to get rid of the ‘arrogant strut’ of the torturers (Weschler, in Harvard Law School 1997: 27); it threatens the silence and impunity of perpetrators. The birth of transitional justice is often attributed to the Nuremburg Trials

and the Tokyo Trials that followed World War II. These trials, directing their

attention not just to the prosecution of individual perpetrators but to saving civilization itself, set the ground for internationalized responses to human rights violations. They propelled the idea that law could deal with the most extensive, gross crimes, and they were swiftly followed by a range of international Conventions and Covenants (Neier 1998). However, these trials also highlighted the dangers of dealing with the past – principally, in how international law could be applied as a form of ‘victor’s justice’ in which the ‘losers’ faced denigration and punishment while the ‘victors’ (that were also undoubtedly responsible for egregious violations) sustained their power and supposed innocence (ibid.). The decades following the Nuremburg and Tokyo trials were marked by

limited responses to gross human rights violations. This situation, attributable to the Cold War, rather than the problems of taking action, began to change during the 1980s and 1990s, a period in which the fall of Latin American dictatorships demonstrated the need for official acts of ‘social repair’ (Fletcher and Weinstein 2002: 578; Teitel 2000). As a result, by the end of the twentieth century, calls for transitional justice measures – such as criminal trials, truth commissions, reparations, memorials, apologies, or lustration (the removal or exclusion of perpetrators from public office) – had become a regular feature in transitional states, sometimes years after violations had taken place (Teitel 2000, 2003). The subsequent ‘global justice cascade’ has been such that, over the last

three decades, there have been almost 40 international courts and tribunals and over 35 truth commissions established to deal with the past (see Sikkink and Walling 2006). These global responses to violations regularly traverse national boundaries, as exemplified by the emergence of the Ad Hoc Tribunals for Rwanda and the Former Yugoslavia, the International Criminal Court, as well as the Pinochet case that crossed British, Spanish, and Chilean jurisdictions. Overall, the expansive rise of transitional justice practices has been dramatic. Doing nothing, it seems, is no longer an option and this upward trajectory of truth and justice measures does not look set to reverse (Sikkink and Walling 2007). The escalation and international ‘success’ of these measures is reflected in

the way that transitional justice has been widely promoted by influential institutions and politically powerful states. The UN (2004) has firmly supported transitional justice measures and has recently condemned the use of blanket amnesties for perpetrators (Bell et al. 2007) and a number of states, including the US, have begun to claim truth-telling and accountability measures as vital ingredients for conflict resolution (Leebaw 2008). Alongside such support, new institutions offering training courses and academic journals,2 established to promote transitional justice ideas, norms, and practices, have emerged. The global transfer of transitional justice knowledge and ‘best practice’ has become increasingly common and potential practitioners can prepare themselves with short ‘toolkit’ courses in New York and Paris, among other cities.