Transitional Justice in the Asia-Pacific (6 page)

This volume seeks to describe and analyze the previously unexplored processes of transitional justice in the Asia-Pacific region. In so doing, it not only fills a geographical void in the study of state responses to past atrocities, it contributes to our understanding of patterns of transitional justice processes, diffusion of those processes, and their impact on human rights and democracy outcomes.

In the 1980s and 1990s, when studies of transitional justice began, transitional justice had penetrated less deeply in Asia than in other regions, such as Latin America and Eastern Europe. As a result, there were fewer scholarly studies of transitional justice in the Asia-Pacific region and less evidence to evaluate the impact of transitional justice mechanisms there. In recent years such mechanisms have started to be used with greater frequency in the region, thereby offering a unique setting for testing theoretical arguments about their emergence and spread. Likewise, evidence
of the impact of transitional justice from other regions may be useful as scholars, policy makers, and practitioners debate what kinds of accountability mechanisms to adopt in the Asia-Pacific region.
This chapter aims at contributing to these debates.

In this chapter we begin with an analysis of what we have learned from our cross-national studies of transitional justice and apply the lessons to the Asia-Pacific region. We first present an overview of the historical background and global trends on transitional justice to situate the Asia-Pacific region in the context of these global trends. We then explore various theoretical explanations for the origins, spread, and impact of transitional justice mechanisms and their implication for the Asia-Pacific experience.

This brief discussion aims to place current debates about accountability for past human rights violations in the Asia-Pacific within a global history of past practices. Prior to WWII, countries virtually never held state officials accountable for past human rights violations.
²
At the international level, various pre-WWII attempts at accountability for war crimes and mass atrocities failed to set up the necessary institutions.
³

Beginning after WWII and continuing through the second half of the twentieth century, states negotiated and produced a series of human rights treaties.
Although an individual criminal accountability model was used in the Nuremberg and Tokyo trials, most of these human rights treaties reflected instead the state accountability model. In this model, the state as a whole was held accountable for human rights violations and was expected to take action to remedy the situation. This continues to be the
model used by virtually the entire human rights apparatus in the United Nations, including almost all of the treaty bodies. It is also the model employed by the regional human rights courts, the European Court of Human Rights, the Inter-American Court of Human Rights, and the African Court of Human Rights. The actual individuals who carried out human rights violations were not affected.

In the 1970s,
the individual criminal accountability model began to emerge. The main differences between the state accountability model and the individual criminal accountability model involve
who
is being held accountable and
how
these actors are held accountable.
⁴
Under a state accountability model, the state provides remedies and pays damages, whereas under a criminal model, the convicted individuals go to prison. In the period from 1990 to 2010, the individual criminal accountability model gained momentum and became more embodied in international law, in international and domestic institutions, and in the global conscious-ness.
⁵

The distinction between state accountability and individual criminal accountability can also be used to categorize transitional justice mechanisms. As part of a broader global trend toward accountability for past human rights violations, states are not only initiating trials but also increasingly using multiple transitional justice mechanisms including truth commissions, reparations, lustration or vetting, customary justice, apologies, museums and memory sites, archives, and oral history projects to address past human rights violations.
⁶
Reparations, apologies, museums, memorials, and many truth commissions emphasize state accountability, and the state as a whole tries to provide some kind of remedy for the damages inflicted by past human rights violations. Prosecutions,
customary justice, and vetting or lustration, on the other hand, tend to focus on individual accountability, where specific individuals responsible for repression are punished. This difference has often been thought of as a difference between restorative and retributive justice, but may just as usefully be seen as a difference in who is held accountable and how they are held accountable.

For years scholars were unaware of the magnitude of the move toward accountability because no global dataset on transitional justice existed. Without data, it was difficult to detect the growth of the new norms and practices. Separately, each of the authors of this chapter worked with a team to create datasets on some transitional justice mechanisms. These database projects blossomed into a major joint research initiative that received financial support from the
National Science Foundation (NSF/U.S.) and
the Arts and Humanities Research Council (AHRC/U.K.). In addition to analysis from our earlier separate data projects, this chapter presents initial data for our joint project on transitional prosecutions, truth commissions, and amnesties. We are currently engaged in a subsequent project that will produce global data on reparations, civil trials, vetting and lustration, and customary justice.

Figure 1
presents an overview of data on trends in verdicts and convictions in human rights prosecutions and the adoption of new amnesty laws. The figure shows the number of countries in any given year with at least one verdict or conviction in a human rights prosecution as well as the number of countries adopting a new amnesty law.

Figure 1.
Trends in amnesty and domestic accountability, 1972–2009.
Note:
This is the number of countries in any given year adopting or using at least one of each mechanism.

The increasing use of prosecutions resulting in convictions attests to the existence of a broader accountability norm. A clear shift away from amnesties, however, has not accompanied the global accountability trend. Although the data in
Figure 1
show a decline in the adoption of
new
amnesty laws for human rights violations, existing amnesty laws have remained in place throughout the world alongside the increased use of prosecutions.
Figure 2
shows the results of our analysis of amnesty laws that have legal standing over the same time period.

This may seem puzzling because amnesty laws are designed to block prosecutions. The combination of amnesty with prosecutions was
possible, first, because each amnesty law was different with some exempting certain actors or actions. These partial amnesty laws coexist with prosecutions and are thus consistent with individual criminal accountability. Second, blanket amnesty laws sometimes faced challenges in courts that
led to circumvention of amnesty laws and sometimes to their erosion or reversal in practice, if not on the books.

Human rights prosecutions are occurring simultaneously at the dome- stic and international levels. The domestic level involves trials for individual criminal accountability conducted in a single country for human rights abuses committed in that country or committed elsewhere in the world by a national of that country. For example, the trials in Indonesia for human rights violations in Indonesia are domestic trials, but the prosecutions in Indonesia for human rights violations in East Timor can also be considered domestic trials because they held Indonesian nationals accountable (see Chapter
3
by Edward Aspinall and Fajran Zain in this volume). International trials also involve trials for individual criminal responsibility for human rights violations in a particular country or conflict and result from the cooperation of multiple states, typically acting on behalf of the United Nations. Examples include the International Criminal Tribunal for the former Yugoslavia (ICTY) and
the International Criminal Tribunal for Rwanda (ICTR). The international trials category also includes hybrid criminal bodies defined by their mixed character of containing a combination of international and national features, as seen, for example, in Cambodia and East Timor (see Chapters
4
and
5
by Kirsten Ainley and Lia Kent in this volume).

Figure 2.
Amnesties for human rights violations with legal standing

Despite the global trend toward expanded prosecutorial activity, there is significant variation in the frequency of human rights prosecutions in different regions of the world. As the pie chart (
Figure 3
) indicates, the trend toward domestic human rights prosecutions has been most pronounced in Latin America and in Central and Eastern Europe. Prosecutions are underway in Asia and Africa, but to a lesser extent than in Europe and the Americas. However, the percentage of prosecutions in Asia is the third largest, after Europe and the Americas, and the number of domestic human rights prosecutions in Asia now appears to be increasing more than in other regions.

International prosecutions are also unevenly distributed across different regions in ways that don't simply reflect where the worst human
rights violations in the world have occurred.
Figure 4
records the regions of the countries whose nationals have been subject to outside efforts to achieve justice through international tribunals, not the countries where the tribunals are located.

Figure 3.
Regional distribution of domestic transitional prosecutions, 1970–2009 (year start)

Figure 4.
International human right prosecutions, 1970–2009