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Prosecution versus Pardon
In the early years of scholarship concerned with transitional justice, a fault line emerged between international lawyers and social scientists over questions of the morality, legality, and efficacy of pursuing criminal proceedings against former state officials. At their core, these ‘major debates’ concerned whether or not new democracies should ‘prosecute or punish... [or] forgive and forget’ crimes committed by members and supporters of past authoritarian regimes.20 In the main, the lawyers who engaged this question endorsed the criminal prosecution of the perpetrators of human rights violations on both deontological and utilitarian grounds.21 They argued that criminal prosecutions were either necessary moral and legal responses to criminal offenses or were useful means of endorsing the criminal justice system, upholding the rule of law, and preventing future abuses through the effects of deterrence, or both. These scholars explicitly opposed the main alternative to prosecutions - amnesties - and questioned their ability to serve the instrumental function of bringing peace and stability to transitional countries with which they had been readily associated.22
By contrast, scholars of democratization viewed the rising demand for accountability that had accompanied the Latin American transitions as a fad that would pass with the passage of time. For example, in
accordance with his view that transitional justice is ‘shaped exclusively by politics’, Huntington observed that no effective criminal prosecution and punishment occurred in most transitional countries before concluding that ‘[i]n new democratic regimes, justice comes quickly or it does not come at all.’ His guidelines for democratizes thus advised that only when it is both ‘morally and politically desirable’ should the leaders of past authoritarian regimes be prosecuted.’ Similarly, O’Donnell and Schmitter predicted that such prosecutions would become less likely as ‘the bitterness of memories attenuated with the passage of time’ in transitional societies. These scholars openly supported the positive function of amnesties in bringing democratization and raised concerns that pushing new democracies to prosecute still-powerful members of former regimes might derail transitions and precipitate renewed violence.
The punishment versus pardon debate came to a head in 1993 with the creation of the International Criminal Tribunal for the Former Yugoslavia (ICTY). In this instance, the ‘Security Council voted to create’ an ad hoc international tribunal ‘while the fighting and atrocities still raged.’ Skeptics of criminal prosecutions vehemently criticized the tribunal for obstructing the ongoing peace process and thus prolonging a war that brought great human suffering. As one anonymous analyst famously wrote, one of the lessons of the former Yugoslavia was that the ‘quest for justice for yesterday’s victims should not be pursued in such a manner that it makes today’s living the dead of tomorrow.’ Lawyers and human rights activists responded to these criticisms and supported the tribunal by arguing that the ‘enforcement of international law’ was ‘an immediate priority, subordinate to neither political nor military imperatives.’29
With the signing of the Rome Statute in July 1998 and the arrest of the former Chilean president Augusto Pinochet in October of the same year, the prosecution versus pardon debate continued and intensified.30 Both events instigated debate over the legitimacy and efficacy of invoking the principle of universal jurisdiction and raised questions about the international status of amnesties granted at the domestic level.31 While proponents of trials heralded their ability to deter future human rights violations,32 others voiced concerns that pursuing international prosecutions through bodies such as the ICC ‘could initiate prosecutions that aggravate bloody political conflicts and prolong political instability in
the affected regions.’ For example, Snyder and Vinjamuri presented a strong argument based on empirical data that human rights trials can actually increase the likelihood of future atrocities, exacerbate conflict, and undermine efforts to establish democracy. In particular, they argued that insurgents engaged in civil conflicts will not sign peace agreements if they fear they will be held accountable for past abuses, even going so far as to accuse ‘[proponents of legalistic justice who underrate the centrality of... political considerations’ of causing ‘more abuses than they prevent.’
In response, proponents of prosecutions have increasingly turned to large-scale empirical studies to determine whether prosecutions or pardons produce the most favorable sets of outcomes for peace, democracy, and human rights. Sikkink and Booth Walling thus conducted a comprehensive study of the impact of human rights trials in Latin America and found that in these cases prosecutions did not ‘undermine democracy and lead to military coups’, lead to more atrocities, or extend or exacerbate conflict. More recently, in a study involving 100 cases from around the world, Kim and Sikkink have confirmed not only that human rights trials have a deterrent effect on human rights violations in the country in which they are held, but ‘have a deterrence impact beyond the confines of the single country.’ In contrast Meernik, Nichols, and King argue that ‘while human rights trials and international tribunals do not exercise any negative effects, they do not appear to contribute to reducing the recurrence of civil war or improvements in human rights practices.’38 The debate thus continues.
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