What do you do with members of former regimes which were characterised by human rights (HR) abuses? Insist on punishment at the risk of social divisions and fracturing a fragile peace? Or opt for clemency and let crimes go unpunished, public wounds unhealed? The question is old, but clearly still relevant today.
This book on justice during political transition comprises articles by HR professionals from around the world. A Chilean HR lawyer explores the international legal and moral obligations on incoming governments as well as their political constraints, and compares the Uruguayan and Argentinean experiences. A second piece looks at retribution versus reconciliation and punishment/prevention; a third reports findings from a conference on transitional justice organised by Charter 77. All highlight the difficulties facing new democracies in terms of balancing power, resources and the public’s demands for justice. They also all stress the importance of investigating and making public the truth about the past, regardless of any other decisions. No policy can be legitimate or effective if the truth is hidden, incomplete or not officially acknowledged.
- The overall objectives of a policy on past HR abuses must be to prevent their recurrence and to repair, as far as possible, the damage done by them; politically motivated policies are unlikely to bring stability.
- The policy must represent the will of the people but also be in accordance with international law; criminal law may not be retroactively applied, genocide may not go unpunished, trials must be fair, and so on.
- A distinction is often made between ‘routine’ abuses of civil rights and more serious charges; where abuse is too widespread to prosecute every individual – for lack of resources or fear of social unrest – selective punishment may be the best compromise.
- Uruguay’s amnesty on security officers still serving – though upheld in a referendum – left the suspicion that future abuses will not be deterred.
International actors involved in developing such policies should review the experiences of other countries and be aware that in different cases, ‘justice’ may best be served by different balances of punishment, prevention and reconciliation.
- Political constraints differ according to the nature of the former and current regimes: a strong victor has fewer constraints than one still reliant on security forces who were involved in past abuses; ethnic tensions may or may not still be a factor.
- The nature of the transition also dictates policy: a gradual transition can allow a degree of popular forgiveness and focus on prevention rather than punishment, which may not be possible where an oppressive regime is swiftly overthrown.
- Disqualification from office due to association with the old regime is a divisive issue: it can help to restore immediate faith in the authorities, but it illegally presumes guilt by association; discrimination is a weak foundation for a new democracy.
- Incoming governments may be unwilling to investigate because of their own chequered past; pressure to conform to international norms may be desirable.
- Managing public expectations of justice is important: Argentina’s President Alfonsín promised more punishment than he could deliver, and backtracking proved costly. A focus on establishing the truth with limited punishability from the outset may have been better.