Transitional Justice in the Asia-Pacific (7 page)

As
Figures 3
and
4
demonstrate, marked differences exist between the regional distribution of domestic and international tribunals. For example, Latin America accounts for the greatest number of domestic human rights prosecutions, but no international tribunals have been set up to
deal with human rights situations in Latin America. Asia accounts for 17 percent of the total number of domestic human rights prosecution activity from 1970 to 2009 and 32 percent of international prosecutions during the same period. These international prosecutions include a small number of trials at the hybrid tribunal in Cambodia, the Extraordinary Chambers in the Courts of Cambodia (ECCC). The rest are made up entirely of prosecutions at the East Timor hybrid tribunal, the Dili Special Panel for Serious Crimes (SPSC). This hybrid tribunal has received less scholarly attention than other international tribunals and has often been considered relatively ineffective. Our coding process nevertheless reveals a very large number of prosecutions and convictions there. The criticism of the SPSC is largely due to its inability to bring suspects residing outside of East Timor to trial. As a result, mainly low-level East Timorese militia members rather than higher level Indonesian officials were prosecuted. Even given these criticisms, the SPSC's relatively high number of prosecutions and convictions is nevertheless notable.

According to
Figures 3
and 4, Asia has a lower level of domestic transitional prosecutions compared to Europe and the Americas and a lower level of international prosecutions than Europe and Africa. These figures may be slightly misleading, however, because they do not control for the number of transitional countries in the region. Because we are comparing prosecutions only in transitional countries, the total number of transitional countries in the region will clearly affect the total number of trials.

Using changes in Polity II scores to generate a list of transitional countries, we consider fifteen Asia-Pacific transitional: Bangladesh, Bhutan, Cambodia, East Timor, Fiji, Indonesia, Kyrgyzstan, Malaysia, Mongolia, Nepal, Pakistan, Philippines, South Korea, Taiwan, and Thailand. Some of these countries experienced multiple transitions.
⁷
The Solomon Islands is not on this list because it is not listed as transitional in the Polity II data. Renee Jeffrey's chapter in this volume shows nonetheless
that the Solomon Islands experienced an important disruption in democracy and afterwards used mechanisms to address human rights violations during that period. Thus for the purposes of this volume, we include the Solomon Islands in the transitional category and speak of sixteen cases of transition in the large Asia-Pacific region. This is a lower number of transitional countries than we find in many other regions of the world, which may influence the number of transitional mechanisms used.

The NSF/AHRC project used the U.S. State Department annual country reports to initially identify human rights prosecutions for their database. We then gathered additional information about each prosecution using diverse primary and secondary sources. In order to be characterized as a transitional human rights prosecution, a case had to involve judicial processes in countries that have experienced a transition to democracy, holding current or former state officials accountable for human rights violations that occurred
prior to
,
during
, or
between
the transition(s) with a trial
between
,
during
, or
after
the transition(s). This is thus an exacting definition that is quite difficult to code, as for every prosecution, coders have to check when the human rights violation and the prosecution occurred in relation to the transition in that country.

Given this definition, and including the Solomon Islands in the group of transitional countries, eleven of the sixteen transitional countries in the Asia-Pacific region held human rights
domestic
prosecutions: Bangladesh, Cambodia, Indonesia, Kyrgyzstan, Nepal, Pakistan, the Philippines, the Solomon Islands, South Korea, Taiwan, and Thailand. In this sense, the fact that 69 percent of the transitional countries in the region held prosecutions is significant and suggests a higher level of accountability than indicated by
Figure 3
. This level is higher than the levels of accountability in Africa and Europe, but still lower than levels in
Latin America (see
Figure 5
). If we include the international prosecutions in East Timor, the level of accountability is even higher. Although our definition of Asia-Pacific encompasses more countries than this volume covers, the trend toward accountability is evident in the chapters on Cambodia (Chapter
4
), Indonesia (Chapter
3
), and South Korea (Chapter
7
).

Figure 5.
Percentage of transitional countries in each region with trials, 1970–2009

In this sense, a high number of transitional countries in the Asia-Pacific region have had either domestic or international/hybrid prosecutions. Even if we set a somewhat higher standard of evaluation and look only at countries that have experienced at least three transitional human rights prosecutions, we still find that the
Asia-Pacific region is second among regions with the highest number of prosecutions as a percentage of transitional countries (see
Figure 6
).

Figure 6.
Percentage of transitional countries in each region with more than three trials, 1970–2009

A look at human rights prosecutions in non-transitional countries suggests that accountability in the Asia-Pacific region has not been limited
to countries making transitions to democracy. In addition, human rights prosecutions have also occurred in non-transitional countries such as the Federated States of Micronesia, India, Japan, New Zealand, Palau, Papua New Guinea, Samoa, Singapore, and Sri Lanka (see Chapter
2
on Sri Lanka).

Our data on amnesties do not find that Asia, or the Asia-Pacific countries in particular, are more likely than other regions to adopt amnesty laws to protect perpetrators of past human rights violations. Of the seventy-six transitional countries in the database, thirty (40 percent) adopted amnesty laws for human rights violations by state agents. Asia as a whole included a smaller percentage of these amnesty laws than other regions (four countries or 13 percent compared to Europe with five countries or 17 percent, Africa with 10 countries or 33 percent, and Latin America with 11 countries or 37 percent). In terms of the numbers of amnesty laws, Asia is also as low as Europe: six amnesty laws or 11 percent of the fifty-six total number of such laws compared to fifteen amnesty laws in Africa (27 percent) and twenty-nine in Latin America (51 percent). Importantly, all of the countries and amnesty laws for past human rights violations in Asia are in the Asia-Pacific subregion: Bangladesh, Cambodia, South Korea, and Thailand. In addition, some scholars and human rights advocates have raised concerns about de facto amnesties that block prosecution in other parts of the region
⁸
(see Chapter
3
).

Finally, we turn to truth commissions. Among the transitional countries in Asia-Pacific, there are eight countries with truth commissions: the Philippines, Nepal, South Korea, Indonesia, East Timor, Pakistan, the Solomon Islands, and Thailand. Some of these countries, such as South Korea, have made multiple use of truth commissions. If we include all truth commissions, both in transitional and non-transitional countries, the number is higher and includes Sri Lanka (1994, three commissions of
inquiry) and India (1977). Thus while numbers of truth commissions in the Asia-Pacific are smaller than the numbers in the Americas and Africa, they are significantly higher than in Europe and are also increasing at a more rapid rate compared to other regions. For example, the Americas used to account for more than 50 percent of truth commissions, but they now account for only 40 percent, in large part due to the growth of truth commissions in the Asia-Pacific region.

In sum, in terms of global rankings, the Asia-Pacific region ranks third for the number of truth commissions, domestic prosecutions, and international prosecutions, and fourth for the number of amnesties. However, if we rank prosecutions in terms of the percentage of transitional countries that have used domestic human rights prosecutions, Asia ranks second. Regardless of how one counts, and including all the mechanisms considered here, these new data suggest that the Asia-Pacific region has had a significant amount of transitional justice, and generally a higher level than often assumed by scholars of transitional justice. This is all the more reason a volume such as this is a welcome addition to the literature.

Figure 7.
Number and percent of truth commissions by region, 1970–2009

The transitions in the third wave of democracy are a necessary factor to explain both the emergence and diffusion of the norm of individual
criminal accountability.
⁹
However, democracy alone is not in any sense a sufficient condition because the earlier second wave of democratization was not accompanied by human rights trials. Even in the third wave, fewer than half of the countries that transitioned to democracy held human rights trials. Because transitional justice has followed the global wave in democratization, however, it will not extend to regions of the world where democratic transitions have not taken root, for example, in the Middle East, or where democratic reversals are occurring, as in Russia and Central Asia. Because the Asia-Pacific region has experienced somewhat fewer transitions to democracy than other regions such as Latin America and Eastern Europe, by definition, it will not have had the same opportunities to adopt transitional trials and truth commissions.

One explanatory factor for the use and diffusion of transitional justice is the degree to which relevant international legal regimes and institutions are in place to make accountability possible. Those states that have ratified international and regional human rights law with provisions for accountability are more likely to use human rights prosecutions.
¹⁰
International human rights institutions exist at both the global level and in some regions. Thus there is considerable regional variation in human rights law, regarding the degree to which different countries in the region have ratified international human rights treaties and have set up regional human rights institutions. Three regions have full-fledged regional human rights regimes: Europe, the Americas, and Africa. These international and regional human rights institutions provide crucial legal doctrines that have facilitated human rights prosecutions, particularly in the Americas. For example, in the Americas,
the Inter-American Court of Human Rights has increasingly ruled that countries have an obligation to provide remedies to victims of human rights violations, and these remedies need
to include provisions for legal accountability. In addition, the international legal doctrine that crimes against humanity that are not subject to statutes of limitations gave invaluable legal tools for human rights litigation in the Americas. It is interesting that the Asia-Pacific region, however, has achieved relatively high levels of accountability without the support of a regional human rights institution.