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Emerging Trends in Transitional Justice and the Asia-Pacific

As hinted at in the discussion above, the dichotomous extremes that once defined the key debates have softened with far more nuanced accounts of transitional justice dominating contemporary thought. As a recent UN OHCHR report notes, ‘the assumed tension between justice and peace has gradually dissolved.’[1] In its place is the widespread recognition that ‘[i]n reality the choice is seldom simply “justice” or “peace” but rather a complex mixture of both.’[2] A new trend has thus emerged where a range of diverse transitional justice mechanisms are applied simultaneously or in sequence with one another, thus allowing transitional and post-conflict states to pursue prosecutions and amnesties, truth commissions and justice measures, and international, state, and local initiatives at the same time. In accordance with this development, the UN now endorses the pursuit of ‘comprehensive’ approaches to transitional justice, while the ICTJ, which initially focused on promoting the South African model of truth commissions, now favors holistic solutions to transitional justice.[3] This approach has garnered some degree of support from scholars who have found empirical evidence that transitional justice approaches that combine trials and amnesties, or trials, amnesties, and truth commissions provide the best sets of outcomes for democracy, peace, and human rights.[4] This approach was not entirely new; the ICTJ, the 2005 revision of the Principles to Combat Impunity by Diane Orentlicher,70 and the 2004 report of the UN Secretary-General upheld the holistic and comprehensive approach in principle.71 However, the application of these principles and promotions in the field and serious academic engagement came more recently.

It is within the Asia-Pacific, in particular, that many of these recent developments in transitional justice have occurred. We have to make it clear that this new development in transitional justice is not exclusively confined to the experience of the countries in the Asia Pacific. Certainly, many combined and holistic approaches have been taken in places such as Chile, Guatemala, Peru, Sierra Leone, Rwanda, and Uganda. However, as mentioned earlier, compared to these cases, the country cases in the Asia Pacific have not fully explored either by international practitioners and scholars so far. In this book we define the Asia-Pacific as a contiguous region of the world that includes East Asia, Southeast Asia, South Asia, Melanesia, and Oceania (primarily Australia and New Zealand). In one sense this is a narrower understanding of the Asia-Pacific than that adopted by the Asia-Pacific Economic Cooperation (APEC) which also includes states that reside on the Pacific Rim such as Russia, the United States, Chile, Peru, and Mexico. In another sense, by excluding the states of Central Asia and the Middle East, it also represents a narrowing of the normal geographical boundaries of Asia.72

Addressing the past wrongs is not a new theme for countries in the Asia-Pacific. Although much less mentioned compared to the Nuremberg counterpart, the Tokyo international military tribunal was set up

70 United Nations, ‘Report of the Independent Expert to Update the Set of Principles to Combat Impunity, Diane Orentlicher on Promotion and Protection of Human Rights’ (UN Doc. E/CN.4/2005/102), 2005.

United Nations, ‘Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies,’ (UN Doc. S/2004/616), 2004.

  • 71 We thank an anonymous reviewer for reminding us of this valid point.
  • 72 This narrowing is largely represented in our selection of case studies. However, in their chapter Payne and Sikkink include the states of Central Asia in their analysis of the Asia-Pacific region to allow for a comprehensive, global analysis of transitional justice mechanisms.

immediately after the end of the World War II to address war crimes and crimes against humanity, and more than 5,000 Japanese nationals were brought to the court. Moreover, the legacy of Japanese colonialism left a deep chasm between Japan and its neighbors, especially China and two Koreas, over issues such as sex slavery and forced labor, apologies and reparations, territorial ownership, the content of Japanese history textbooks, and Japanese state officials’ visits to the Yasukuni Shrine.[5] On the other side of the equator, human rights violations perpetrated by Western settlers in Australia and New Zealand have also left emotionally-charged tensions between new settlers and aborigines, issues that their respective governments continue to address.[6]

In the past decade or so, however, the Asia-Pacific region has experienced a significant increase in the use of transitional justice mechanisms to address past human rights violations. In this it has lagged behind Latin America, Eastern Europe, and Africa where the pursuit of transitional justice gained momentum in the 1980s and 1990s. Coming to transitional justice relatively late, however, the approaches pursued in the Asia-Pacific reflect the range of mechanisms available, both individually and in combination with one another and the contemporary challenges faced by transitional justice more broadly.

Table 1 illustrates the overall trend of adopting three main transitional justice mechanisms - trials, truth commissions, and amnesties - in the Asia-Pacific region. Although this data measures only the existence of these mechanisms in the country within a given year, it is still useful to get the bigger picture of the general trend. Notably, all the cases

Table 1. TransitionalJustice Mechanisms in the Asia-Pacific, 1980-2010

Country/Case

Trials

Truth Commissions

Amnesties

Afghanistan

1980, 2004

1986

1979-1981, 1986, 1992, 1997, 2003, 2007

Bangladesh

1988,1995, 2000

1983,1989,1991, 1997-1998

Bougainville, Papua New Guinea Burma

2000

1995, 1998 1980, 1988

Cambodia

1993, 2006-ongoing

1994, 1996

East Timor

Fiji

India

2002-2006

2002-2007

  • 2001, 2005
  • 2000
  • 1986, 1991, 2004-2005

Indonesia

(Aceh)

Laos

1992, 1999, 2002-2004

1999-2007

  • 1998, 2005
  • 2005
  • 1991, 2004

Nepal

2007, 2008

1990-1991

1998-1999, 2001, 2003, 2005-06

Pakistan

1981, 1995

2006

Philippines

1988, 1990

1986-1987

1985,1987,1992, 1994-1996, 2000, 2007

Solomon

Islands

2005

2009-ongoing

2000, 2001

South Korea

1996

  • 2000-2004,
  • 2005-ongoing

1981,1997

Sri Lanka

  • 1994-1997,
  • 2001-2002,
  • 2006

1987-1988,1995

Thailand

Vietnam

1985,1998, 2009

2001-2004

1980-1981, 1988, 1991-1992, 2004, 2006 1987

Note: The table is based primarily on Olsen, Payne, and Reiter, Transitional Justice in Balance, pp. 181-188, with some updates.

of transitional justice in the Asia-Pacific since the 1980s have involved the granting of amnesties. Rather than simply choosing impunity over accountability, however, most have also instituted human rights trials at the domestic or international level. Significantly, it was in the Asia- Pacific case of Cambodia that the idea of instituting hybrid international- domestic criminal tribunals to prosecute the perpetrators of human rights violations was first developed. Although it did not come into operation until 2006, the genesis of the Extraordinary Chambers in the Courts of Cambodia gave rise to what has become known as the ‘Cambodia model’, replicated in the East Timor Serious Crimes Special Panels, the Kosovo Courts’ ‘Panels 64’, and the Special Court for Sierra Leone.[7] In addition, truth commissions have also found form in the Asia-Pacific, particularly from 2000 onward. Also significant about the implementation of transitional justice in the Asia-Pacific is that the vast majority of cases listed in Table 1 have implemented more than one mechanism.

Of the nineteen cases of transitional justice in the region since 1980, only six have instituted just one mechanism and, in each case, this was an amnesty. More common has been the implementation of two or more mechanisms either simultaneously, as in the case of East Timor, or in sequence, as in the case of the Solomon Islands in which amnesties in 2000 and 2001 were followed by trials in 2005, and then a truth commission which began in 2009 and is still conducting its investigations. As such, the Asia-Pacific provides fertile ground for examining the practices, processes, and problems associated with the newly endorsed comprehensive or holistic approach to transitional justice. The cases examined in this book are highlighted in bold in Table 1 and constitute a representative sample of the combinations of transitional justice mechanisms used in the region: amnesty only (Aceh, Indonesia); amnesty and trials (Cambodia);

amnesty, trials, and truth commissions in combination (East Timor); amnesty, trials, and truth commissions in sequence (Solomon Islands and South Korea); and truth commissions and amnesties (Sri Lanka).

Considered in political terms, the Asia-Pacific also brings together two major contexts in which transitional justice is instituted: transitions from authoritarian rule to democracy and from conflict to peace. Since 1980, twenty-eight states in the region have experienced some form of political transition. Of these, eleven have undergone at least one transition to democracy.[8] During the same period, East Timor has gained independence from Indonesia while Aceh and Bougainville have been granted autonomy from Indonesia and Papua New Guinea, respectively. At the same time, some sixteen states in the region were engaged in violent civil or, less commonly, interstate conflicts.[9] Of these, seven also involved a transition from authoritarian rule while two involved a transition to autonomous democratic rule within another state (Bougainville/Papua New Guinea, and Aceh/Indonesia).

Table 2 provides an overview of the political transitions that have taken place in the various sub-regions of the Asia-Pacific in which at least one of the transitional justice mechanisms included in Table 1 (trials, truth commissions, and amnesties) have been used. This means that political transitions in which no transitional justice mechanisms were employed have not been included. Dividing the Asia-Pacific into its various subregions is also significant because it is within the sub-regions that the

Table 2. Political Transitions Involving Transitional Justice in the Asia-Pacific, 1980-2010

Sub-Regions

Transition

from

Authoritarianism

Transition

from

Authoritarianism and Civil War

Transition from Civil War

No

Transition

Northeast Asia

South Korea

Southeast Asia

Philippines,

Cambodia,

Thailand,

Indonesia

(Aceh)

Burma, Laos, East Timor

Vietnam

South Asia

Pakistan,

Nepal,

Bangladesh

Afghanistan, India, Sri Lanka

Oceania

Solomon Islands, Papua New Guinea (Bougainville)

Fiji

greatest commonalities in historical, cultural, and linguistic terms lie and the influences of the great powers of the region are felt. Thus while China and Japan exert influence over Northeast Asia, India looms large over the politics of South Asia, China over Southeast Asia, and Australia over the small island states of Oceania.78 As we will see in the case studies to follow, these influences have in some instances had great bearing on the contexts in which transitional justice has been pursued in the region and the choice of mechanisms according to which it has been implemented. In order to provide a representative sample of cases across the sub-regions of the Asia-Pacific and the three major types of transition the cases highlighted in bold have been selected for individual consideration. Note that neither of the cases listed under the heading of ‘No Transition’ have been

78 This is not to suggest that Australia is a great power, only that it exerts significant influence over a small cluster of Pacific Island states.

included. This is because each of these is a case of an amnesty being instituted in isolation (as addressed in the case of Indonesia/Aceh).[10] In addition, Fiji is something of an anomaly for in this case, an amnesty was granted to those engaged in a military coup in 2000 but was followed by another military coup in 2006, the leaders of which are still in power. Together the cases selected are emblematic of the contexts in and mechanisms by which transitional justice is pursued across the various sub-regions of the Asia-Pacific.

Certainly, this volume does not aim at collecting a comprehensive list of all transitional countries in the Asia-Pacific region. We chose a representative sample of cases from the Asia-Pacific region rather than aiming for comprehensiveness. The main reason for the choice is because, as many of the cases are relatively unknown, we believe that in-depth analysis of these cases is required to delve further into the historical contexts in which transitional justice have taken place and explain some detailed processes and practices that have been undertaken.

  • [1] UN OHCHR Report, ‘Analytical Study of the HC - Human Rights and TransitionalJustice - Addendum’ (UN Doc. A/HRC/12/19), 2009.
  • [2] Chandra Lekha Sriram, ‘Transitional Justice and Peacebuilding’ in Chandra LekhaSriram and Suren Pillay (ed.), Peace versus Justice? The Dilemma of Transitional Justicein Africa, Scottsville: University of KwaZulu-Natal Press, 2009, p. 1.
  • [3] Report of the Secretary-General, ‘The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies,’ United Nations Security Council, 23 August 2004,S/2004/616, Summary, p. 1, at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N04/395/29/PDF/N0439529.pdf?OpenElement (accessed 6 June 2011);Christine Bell,‘Transitional Justice, Interdisciplinarity and the State of the “Field” or “Non-Field,”’International Journal of Transitional Justice, Vol. 3, No. 1 (2009), p. 8; see the visionand mission section of the ICTJ’s Web site, http://ictj.org/about/vision-and-mission.
  • [4] Olsen, Payne, and Reiter, Transitional Justice in Balance.
  • [5] For more details, see Gi-Wook Shin, Woon-Won Park, and Daqing Yang (eds.),Rethinking Historical Injustice and Reconciliation in Northeast Asia: The Korean Experience, New York: Routledge, 2007. See also Renee Jeffery, ‘When Is An ApologyNot An Apology? Contrition Chic and Japan’s (Un)Apologetic Politics,’ AustralianJournal of International Affairs, Vol. 65, No. 5 (2011), pp. 607-617.
  • [6] However, we do not include these measures addressing historical injustices since itis outside the scope of our definition of transitional justice, which requires democratization of a peace process, which is a widely accepted definition in the literature oftransitional justice.
  • [7] John D. Ciorciari, ‘Introduction,’ in The Khmer Rouge Tribunal, Phnom Penh: Documentation Center of Cambodia, 2006, p. 18;Tom Fawthrop and Helen Jarvis, GettingAway with Genocide? Elusive Justice and the Khmer Rouge Tribunal, London: PlutoPress, 2004, p. 181;Renee Jeffery, ‘Beyond Repair? Collective and Moral Reparationsat the Khmer Rouge Tribunal,’ Journal of Human Rights, forthcoming.
  • [8] Bangladesh (1991), Cambodia(1993),Indonesia (1999), Mongolia (1992), Nepal (1990),Pakistan (1988), Philippines (1987), South Korea (1988), Taiwan (1992), and Thailand(1992).
  • [9] Philippines (1967-ongoing;1970-ongoing (Mindanao)), Cambodia (1967-1998), Thailand (1974-1982;2003-ongoing), Indonesia (1975-1998 (East Timor);1990-1991,1999- 2005 (Aceh)), Pakistan (1990-1996, 2007;2004-ongoing (Baluchistan)), Nepal (19962006), Bangladesh (1975-1992), Malaysia (1981), Burma (1948-1994;1949-ongoing(Karen), 1959-ongoing (Shan);1992-1996, 2005 (Karenni), 1997 (Wa)), Laos (19891990), East Timor (1975-1998), Afghanistan (1978-ongoing), India (1990-2007;1978- 2006 (Tripura);1982-ongoing (Manipur);1983-1993 (Punjab/Khalistan);1989-ongoing(Kashmir);1990-ongoing (Assam);1992-ongoing (Nagaland)), Sri Lanka (1989-1990,1984-2009), Solomon Islands (1998-2003), Papua New Guinea (1989-1996).
  • [10] Renee Jeffery, ‘Amnesty and Accountability: The Price of Peace in Aceh,’ InternationalJournal of Transitional Justice, Vol. 6, No. 1 (2012), pp. 60-82.
 
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