Confronting Past Human Rights Violations: Justice vs Peace in Times of Transition
By Chandra Lekha Sriram
Summary written by Eric Brahm, Conflict Research Consortium
Citation: Chandra Lekha Sriram, Confronting Past Human Rights Violations: Justice vs. Peace in Times of Transition (New York: Frank Cass, 2004).
The transitional justice literature has often characterized the choice facing new governments as a stark dichotomy between pursuing justice and peace. Pursuing justice risks a destabilizing threat by those threatened with punishment. Therefore, many argue that justice must be foregone in the interest of peace. This study begins with the premise that the situation is not an either-or trade-off, but rather there are a continuum of options governments have pursued in transitional circumstances. In this volume, Sriram explores the factors making accountability for past human rights abuses more or less viable in transitional situations. Offering a comparative survey of twenty-six transitional experiences and detailed case studies of El Salvador, Honduras, Argentina, South Africa, and Sri Lanka, it highlights three factors, which influence the degree of accountability achieved: external influence, the balance of forces amongst former opponents, and the nature and scope of the abuses of the past. It also explores the trade-offs of choosing various mechanisms. She finds that the first two factors are much more important than the third. Although anecdotal evidence suggests the nature and extent of past abuses is significant, logic often points in contradictory directions as to its expected effect. For those committed to the pursuit of justice, her case studies do reveal that prosecution are more frequent than one would assume and frequently in combination with other transitional justice mechanisms.
The Salvadoran case study has a useful background on the negotiation of the peace accords there. It provides a discussion of the Salvadoran Commission on the Truth and the Ad Hoc Commission and a scorecard of the mixed record of implementing their recommendations. Although both sides of the conflict bound themselves to the peace accords, they have not always lived up to their commitments. Both the military and the government reacted negatively to the report by the truth commission, which was made up entirely of foreigners, and a blanket amnesty was soon passed. Yet, as Sriram discusses, there has been some progress on implementing some of its recommendations, in particular after US pressure grew. For her broader argument, the case study illustrates the importance of hurting stalemates and US pressure in bringing the sides to the negotiating table. She argues also that, while full accounting of the past was not achieved, other reforms were enacted that may minimize the possibility of a recurrence of past crimes.
In Argentina in 1983, the new democratically elected President Alfonsin faced significant demands for accountability from human rights groups like the Mothers of the Plaza de Mayo. Soon, the government was caught between a nervous military and an increasingly activist judiciary. The case study traces the work of the Argentine truth commission (CONADEP) and efforts to prosecute former junta leaders. The Falklands/Malvinas defeat provided a window of opportunity, but the military was able to significantly reverse steps toward accountability, essentially reversing efforts at prosecution. At the same time, she shows that some accounting was achieved through the truth commission and some reforms have been achieved. The case is interesting not least because it represents a country grappling with accountability issues almost entirely free of external influence.
Honduras proves an interesting case in which attempts have been made to reach some form of accountability for past abuses where there is an absence of significant opposition, which would be expected to press for such measures. Although the military remained strong, the changing international environment cost it external support and brought greater scrutiny. Despite an amnesty and non-cooperation on the part of the military, some success has been achieved. A national commissioner for human rights was created, which issued a strong report on past crimes. There have been some prosecutions and the military and police forces have been separated. In this case, external actors have also played little role, except negative in the form of US support of the Honduran military during the Cold War. Sriram also argues that the relatively small number of disappearances may also have made it possible to achieve greater accountability than might otherwise have been possible.
In South Africa, international factors played much more of an enabling role both in the global anti-apartheid movement and the changing dynamics of the end of the Cold War. The outgoing National Party apartheid government still retained sufficient power to at least in part control its own destiny. Many civil servants were protected from purges and an amnesty was negotiated. The interesting innovation of the South African case was that amnesty was individualized and made conditional on a full confession to the Truth and Reconciliation Commission. Thus, prosecution was foregone against those who confessed. However, significant reform of the security forces has been achieved and their make up has become more racially balanced.
Finally, Sri Lanka provides a different sort of interesting case. Most significantly, efforts at accountability have emerged in the absence of a transition. Sri Lanka has remained ostensibly a democracy throughout its history of human rights abuses, which stem largely from ethnic conflict. In fact, unlike the Latin American cases, the Sri Lankan military has no history of political involvement. What is more, the case diverges from the others in that external influence has come largely through the regional hegemon, India. The government has created a truth commission (actually three regional commissions that took very different forms) and has pursued a number of high profile trials. However, the exigencies of fighting a civil war have minimized the desire on the part of the civilian government to hold the armed forces accountable or to make significant institutional reforms.