Transitional Justice in the Asia-Pacific (40 page)

When we consider the overall impact that transitional justice processes and practices have had on human rights, peace and democracy in the Asia-Pacific, Payne and Sikkink's large-
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studies produce somewhat different results to the case studies included in this volume. Rather than confirming that transitional justice has a simple, positive effect, the assessments provided by our case study authors are decidedly more mixed. Here contributors have made two different sets of judgments, about the level of accountability for past human rights violations achieved, and about the effects of transitional justice mechanisms on human rights, democracy and peace. In the first instance, a range of different outcomes were observed. While South Korea and the Solomon Islands fared reasonably well in terms of achieving accountability, Sri Lanka and Aceh performed poorly. East Timor and Cambodia experienced mixed results, with some limited accountability achieved and, inevitably, disappointment expressed over those limitations. In the cases of Cambodia and the Solomon Islands, any success in achieving accountability has been tempered by the significant problems associated with the criminal justice processes undertaken. In the Solomon Islands the process faced criticism for its selectiveness and adversarial nature, while in Cambodia the sense that the ECCC is ‘generally fair, having been conducted according to accepted standards of international due process’ has been accompanied by concerns over corruption, government tampering and a lack of adequate funding.
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When it comes to the outcomes achieved by the transitional justice processes and practices implemented in the Asia-Pacific cases, for human rights, peace and democracy, it is unclear whether a correlation exists between levels of accountability and outcomes. On one hand, in the cases of South Korea, the Solomon Islands and Sri Lanka, relationships between accountability and outcomes seem apparent. While substantial
improvements in human rights, democracy and/or peace have followed transitional justice measures in the Solomon Islands and South Korea, ‘the quality of democracy, human rights, and rule of law have been progressively degraded’ in Sri Lanka, where little accountability has been achieved.
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On the other hand, however, Aceh has enjoyed improvements in human rights, democracy and peace without significant accountability for past human rights violations. What is more, even where relationships between accountability and positive outcomes have been identified, contributors were cautious in explicitly stating that the transitional justice process had been a success.

What explains this cautious assessment of the success of transitional justice processes and practices in the region provided by our case studies? There are three possible explanations for this. First, as the majority of transitional justice measures undertaken in the region are relatively recent, it may be too early to discern or analyse their effects. Most large-scale global analyses of transitional justice mechanisms and their effects employ datasets stretching back to the 1970s and are thus able to capture the long-term outcomes associated with particular approaches. Indeed, most assessments of the outcomes produced by transitional justice processes measure impact five and ten years after the event. Of the cases examined in this volume, Cambodia and the Solomon Islands still have transitional justice processes underway with the ECCC and TRC respectively, while less than ten years have elapsed since either a transition or the last use of a transitional justice mechanism in Sri Lanka, Aceh, East Timor and South Korea. It thus seems that time will tell whether the approaches employed by the states of the Asia-Pacific will ultimately bring benefits for peace, democracy and human rights.

Second, the discrepancy we have identified between the assessments of the outcomes of transitional justice processes between Payne and Sikkink's analysis and those of our case study contributors may also be the result of the different methods used. In particular, it may be the case that
impact is a more complicated social phenomenon than can be accurately measured and operationalised with indices such as the Political Terror Scale, the CIRI Personal Integrity Rights index, or the Polity IV democracy score. Third, and finally, there is also the issue of what constitutes ‘success’. How successful does a transitional justice practice or process have to be before we will declare it a success? Here the assessments provided by our authors highlight the difficulties associated with making judgments of success and failure. On the one hand, it seems remiss to overlook any advances for human rights, peace and democracy achieved by implementing a transitional justice process. After all, any improvement constitutes some degree of success. On the other hand, however, is the concern that any declaration of success will overshadow problems that remain without redress, marginalise negative outcomes that have worsened some areas of concern, and foster complacency regarding the pursuit of accountability. As with the pursuit of transitional justice, ‘balance’ seems to be the key here.

What insights into the accountability-with-stability theory do the cases examined in this volume provide? In brute empirical terms, the Asia-Pacific has exhibited the same upward trends in the use of trials and of amnesties that has been observed on a global level. While trials were used in four of the six cases examined, all six employed an amnesty at some point prior to, during or after their transition. What is more, three states, the Solomon Islands, East Timor and South Korea used a combination of all three major transitional justice mechanisms, trials, amnesties and truth commissions. That is, four of the six cases under consideration (East Timor, Cambodia, the Solomon Islands and South Korea) implemented one of what Payne and her co-authors identify as the two optimal combinations of transitional justice measures. As we have already seen, however, when we delve below the surface of these combinations, the outcomes they have achieved are not entirely clear.

Although multiple transitional justice mechanisms were used in most of our cases, our authors revealed that the relationships between and dynamics created by particular combinations of measures are highly complicated. In the cases of Aceh, Indonesia and the Solomon Islands, amnesty provisions included in the Helsinki MoU and the Townsville Peace Agreement, respectively, helped to ‘end civil conflict and permitted the transition to peace’, thus contributing to stability.
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However, in Aceh the amnesty has directly blocked the pursuit of criminal trials and the issue of impunity has proved to be an obstacle to the establishment of a truth and reconciliation commission. By contrast, in the Solomon Islands, amnesties were side-stepped in order to allow prosecutions to take place, trials have been followed by a TRC, and the issue of amnesty is once again on the agenda as some wish to round out the transitional justice process with one final grant of impunity. In the case of Cambodia, the 1996 Royal Pardon was, according to Ainley, ‘useful in bringing peace.’
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For more than a decade it blocked accountability, before being overcome in the pre-trial hearings of Case 002 at the ECCC. In East Timor, amnesties and trials were pursued concurrently, on a selective basis, while establishing a connection between amnesties and other measures is difficult for the case of Sri Lanka.

The patterns according to which the states of the Asia-Pacific implemented different combinations of transitional justice mechanisms raise two key questions about the idea of accountability-with-stability. Is the decision to follow amnesties with prosecutions evidence of ‘a functional relationship’ between various transitional justice measures, or does it signify the triumph of accountability over the culture of impunity? And, do amnesties, through their contribution to stability or other effects, facilitate the pursuit of accountability in the future? With regard to the first question, the cases examined in this volume appear to suggest that both may be the case. In the cases of East Timor, Cambodia and the Solomon
Islands, some sort of at least minimally functional relationship was forged between the work performed by amnesties and that of prosecutions. Yet, in the latter two cases, the addition of criminal trials to the transitional justice process also marked a sort of triumph (if limited and minimal) of accountability over impunity.

With this, the second question thus comes into play. Two possible pathways can be identified. The first is relatively simple: amnesties help create peace and stability and, in those conditions, the pursuit of prosecutions (sometimes some years later) is made possible without jeopardising the transition that has taken place. The second relates to Sikkink's normative socialisation argument. Payne and Sikkink thus argue that ‘amnesty laws and accountability efforts set in motion dramatic and public debates, establishing a new justice norm to replace the prior culture of amnesty.’ What is more, they also add that ‘some evidence suggests that where amnesties exist, mobilisation to undermine them leads to trials, a pathway to accountability and deterrence that is less likely where no amnesty law exists to condemn domestically and internationally.’
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Precisely which, if either, of these pathways has been at play in the cases of the Asia-Pacific remains unclear at present. Amnesty laws implemented in Aceh, the Solomon Islands, Cambodia and East Timor have certainly given rise to debates about their legitimacy, effectiveness and appropriateness, but we have not yet found evidence that these debates further facilitated the adoption of accountability measures. In Aceh, trials have not followed criticisms of its amnesty law, while in the Solomon Islands and Cambodia decisions to prosecute perpetrators of human rights violations appear to have been made independently of pre-existing amnesties and concerns over their legitimacy. Interestingly, in the cases considered in this volume, more heated debates about transitional justice measures tended to centre on the conduct, effectiveness and outcomes of holding trials.

Of the cases examined in this volume, four – East Timor, the Solomon Islands, South Korea and Sri Lanka – have held truth commissions. Again, a range of outcomes can be identified. Notwithstanding the limitations he notes, Kim generally views the truth commissions in South Korea as being successful for revealing the dark past, restoring the honour of victims, and making major policy recommendations.
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Jeffery also sees a truth commission in the Solomon Islands as possibly proving to be an effective ‘third way’ after the two more extreme options of amnesties and trials were exhausted. She argues that the truth commission ‘not only represents the Solomon Islands’ most concerted effort to confront its violent past to date but an attempt to reconcile the seemingly incompatible approaches to transitional justice that were previously pursued in the post-conflict context.’
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However, as the TRC is still in operation, it remains to be seen whether this potential will be realised.

By contrast,
both Sriram and Kent were more cautious in positively evaluating the functions and effects of truth commissions established in Sri Lanka and East Timor, respectively, with both highlighting complications that arose due to domestic and international factors. Sriram thus argues that some truth commissions which were ‘ostensibly designed to reach the truth about past abuses,’ when in operation actually did ‘the reverse.’
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We are thus left with a somewhat unsatisfactory conclusion when it comes to the effect of truth commissions: from the case studies examined in this book it remains unclear whether truth commissions have or indeed will have a positive or negative impact on the future conditions of human rights. Again, this may be in part due to the short period of time that has elapsed since many of these commissions were established, or it may be that our small set of cases is not representative of any particular trend.

What kind of policy implications do our findings have for future cases of transitional justice, not only for countries in the Asia-Pacific still awaiting transitions to democracy and/or to peace, but also for those countries experiencing the so-called ‘fourth wave of democratisation’ in the Middle East and North Africa? Without wanting to head down the dangerous path of prescribing particular courses of action or make vast generalisations (for, as we have seen, the pursuit of transitional justice is highly contextual), two main implications are apparent.

First, the cases of the Asia-Pacific help to illustrate the fact that although the world has experienced a rise in norms associated with human rights and accountability,
the culture of impunity is still strong. It is thus not particularly surprising that demands for accountability in the wake of the Arab Spring have been met with sustained resistance. In some ways, contemporary scholarly debates about the effectiveness of transitional justice measures play into the hands of those who wish to avoid justice. Offering up claims that particular measures are a waste of money or are ineffective, backward-looking approaches often tip the scale against accountability. Yet, at the same time, we cannot shy away from developing a deeper, more nuanced and comprehensive understanding of the effects of transitional justice, for this is essential to ensuring optimal outcomes for peace, democracy and human rights are achieved for future transitional states.

Second, although the culture of impunity is still strong and considerable internal resistance to accountability exists, in four of the six cases we examined, accountability eventually overcame impunity. Even in the two cases in which accountability has not been forthcoming, Aceh and Sri Lanka, demands for truth and justice continue to be voiced.
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As the cases of delayed accountability in the region demonstrate, however, it is not necessarily the case that impunity will always endure. If the
precondition of stable, consolidated democracy is met, then strong and resilient activism in the region may well see belated accountability for human rights violations achieved. So long as that remains a possibility, the future for transitional and post-transitional states in the Asia-Pacific and, indeed, the world, may not be so dark after all.