Theoretical Arguments on the Impact of Transitional Justice
We consider three approaches to explain the impact of transitional justice: deterrence, normative socialization, and accountability-with-stability. While these hypotheses could be competing, they could also be complementary. The deterrence hypothesis derives from both the international relations compliance literature, involving a rationalist assumption that an increase in enforcement should lead to an increase in cooperation, and the literature on deterrence in domestic legal systems that an increase in the likelihood or probability of arrest and punishment can deter crime.16 The normative socialization hypothesis sees transitional justice mechanisms as high-profile symbolic and performative events that communicate and dramatize norms and socialize actors to accept those norms. These processes of communication and socialization in some cases can lead to behavioral change without the use of material sanctions or punishment.17
Our previous research has produced some evidence for each of these hypotheses. Sikkink’s book, The Justice Cascade: How Human Rights Prosecutions are Changing World Politics, in particular, stressed the importance of both deterrence and normative socialization as theories that help explain why trials have a positive impact on human rights practices. In addition, Payne’s research with Olsen and Reiter18 and Sikkink and Kim19 have found that the use of trials is associated with improvements in human rights, lending some support for the deterrence hypothesis that an increase in enforcement or punishment can lead to a decrease in crime. In addition, new research using the NSF/AHRC data on convictions also suggests that prosecutions that end in convictions have a more significant impact on human rights practices than prosecutions that do not
Vol. 71, No. 1 (2006), pp. 95—122; Bill McCarthy, “New Economics of Sociological Criminology,” Annual Review of Sociology, Vol. 28 (2002), pp. 417-442;Daniel S. Nagin, “Criminal Deterrence Research at the Outset of the Twenty-First Century,” Crime and Justice: A Review of Research, Vol. 23 Edited by Michael Tonry (Chicago: University of Chicago Press, 1998), pp. 1-42.
- 16 Bruce Bueno de Mesquita and Lawrence E. Cohen, “Self-Interest, Equity, and Crime Control: A Game-Theoretic Analysis of Criminal Decision Making,” Criminology, Vol. 33, No. 4 (1995), pp. 483-518; McCarthy (2002); Nagin (1998).
- 17 Thomas Risse, Stephen C. Ropp, and Kathryn Sikkink, eds., The Power of Human Rights: International Norms and Domestic Change (Cambridge: Cambridge University Press, 1999);Ryan Goodman and Derek Jinks, “How to Influence States: Socialization and International Human Rights Law,” Duke Law Journal, Vol. 54, No. 3 (2004), pp. 621-703.
- 18 Tricia D. Olsen, Leigh A. Payne, and Andrew G. Reiter, Transitional Justice in Balance: Comparing Processes, Weighing Efficacy (Washington D.C.: United States Institute of Peace Press, 2010).
- 19 Hun Joon Kim and Kathryn Sikkink, “Explaining the Deterrence Effect of Human Rights Prosecutions for Transitional Countries,” International Studies Quarterly, Vol. 54, No. 4 (2010), pp. 939-963; Hun Joon Kim and Kathryn Sikkink, “How Do Human Rights Prosecutions Improve Human Rights after Transition?” forthcoming in the Interdisciplinary Journal ofHuman Rights Law, Vol. 7 (2012-2013).
end in convictions. This provides support for the deterrence argument, in which an increased likelihood of retribution or punishment is the factor contributing to human rights improvements. At the same time, Kim and Sikkink (2010, 2012-2013) have found that truth commissions and prosecutions that do not result in convictions continue to be associated with improvements in human rights, providing some support also for the normative communication hypothesis. Olsen et al. (2010), on the other hand, have found that the use of truth commissions alone is not associated with improvements in human rights, but rather a deterioration of those scores, which calls into question the normative socialization hypothesis.
On the surface, the use of amnesties does not appear to be consistent with either the deterrence or the norms and socialization explanation. However, our joint research project suggests that amnesty laws and accountability efforts set in motion dramatic and public debate, establishing a new justice norm to replace the prior culture of impunity. Payne’s research with Olsen and Reiter has revealed a set of pathways used around the world to circumvent amnesties and allow for trials and improvements in human rights and democracy. Indeed, some evidence suggests that where amnesties exist, mobilization to undermine them leads to trials, a pathway to accountability and deterrence that is less likely where no amnesty law exists to condemn domestically or internationally. Moreover, trials and truth commissions reveal the lack of legitimacy of amnesties, suggesting that normative socialization may contribute to undermining the effectiveness of amnesties in preventing accountability.
Payne’s research with Olsen and Reiter in particular develops the accountability-with-stability approach. In their 2010 book, Transitional Justice in Balance: Comparing Processes, Weighing Efficacy, they tested the assumptions in the existing literature regarding the impact of transitional justice on human rights and democracy. They found that they could not confirm the theoretical approaches that assume that single mechanisms are likely to bring improvements in human rights or democracy. Neither trials nor truth commissions nor amnesties - by themselves - produced positive statistically significant findings for those outcomes. They found, however, that certain combinations of mechanisms produced positive and statistically significant results for human rights and democracy.
Two specific combinations produced those results: (1) trials and amnesties or (2) trials, amnesties, and truth commissions. The “justice balance” approach that they derived from this analysis contends that trials and amnesties complement each other. Trials enhance the institutional strength and legitimacy of courts by showing that previously untouchable perpetrators of state violence can be held accountable. By punishing perpetrators, moreover, trials attach a cost to committing atrocity, thereby eroding the previously prevailing culture of impunity. Amnesties, on the other hand, allow for stability during the early vulnerable period of transition in which trials might catalyze former perpetrators and jeopardize the nascent democracy and its protections of human rights. Amnesties might also protect against “show” and “sham” trials that are likely to occur in the early transition period before the old regime’s legal community is replaced with prosecutors and judges trained after the democratic opening. In addition, amnesties might offset the cost of expensive trials by first allocating scarce public funds to resolve economic crises in the early years of the transition before adopting trials during a more secure economic moment. The balance, hence, involves stability on one side and accountability on the other, together increasing the likelihood of positive results for human rights and democracy. The assumption behind the justice balance is that accountability might not have a positive result without stability, enhanced by amnesties, and that amnesties will not likely advance human rights and democracy without accountability mechanisms. Truth commissions contribute to the balance by enhancing the stability-accountability function of transitional justice and addressing the specific needs of victims.
This approach draws on existing scholarship on transitional justice. It concurs, for example, with those who advocate trials as essential to human rights improvements. It also concurs with those who consider amnesties a “necessary evil,” an undesirable but often crucial ingredient to successfully ending violence and promoting democratic transitions. These approaches are often viewed as incompatible. Those advocating trials tend to consider amnesties a form of impunity that jeopardizes human rights advances. Those advocating amnesties tend to view trials as undermining the transition process. Indeed, advocates of truth commissions see them as negotiating the space between the potentially destabilizing trial process and the impunity associated with amnesties and, therefore, a better alternative to both trials and amnesties. The justice balance approach suggests that these three sets of mechanisms are not trade-offs, or alternatives, to each other, but rather are complementary. Together they bring the stability and accountability that advances human rights improvements.
Olsen et al. draw the conclusion that the existing literature exaggerates the presumed trade-off between trials, amnesties, and truth commissions. This analysis suggests that human rights and democracy improvements depend on trials and amnesties, with or without truth commissions, suggesting that the mechanisms complement one another in a justice balance of accountability combined with stability.
Since the publication of their book, Olsen et al. have begun researching alternative explanations for their results. Some scholars argue that the coexistence of trials and amnesties may result from historical and sequenced outcomes, rather than a functional relationship. In particular, when trials and amnesties coexist to improve human rights, trials may have succeeded in overcoming the limitations on accountability that amnesties impose. Latin America provides the most compelling example of such a process. Thus, sequencing, timing, type of amnesty, context, and region may suggest that trials alone, without the need for amnesties, improve human rights. The researchers have considered these alternative explanations in their recent work.
Sequencing. Some scholars, including Payne’s research team, assume that the positive outcome from combining trials and amnesty results from their adoption sequence. In some cases, however, scholars suggest that where trials follow amnesties, they render amnesties ineffective and irrelevant. Trials therefore drive the improvements in human rights - not amnesties or combinations. Payne’s team contends, in contrast, that if trials were doing all of the work for improvements in human rights, then trials on their own would have produced positive outcomes for human rights. Payne’s research team suggests that amnesties play an important role in establishing stability. Thus sequencing trials after the initial vulnerable period of transition would allow for amnesties to play the stabilizing role that allows for the transition and subsequent trials allow for the accountability function of strengthening judicial institutions and raising the cost of committing human rights violations.
Timing. Deterrence and normative socialization arguments suggest that increased enforcement mechanisms in the international system and the spread of norms in favor of accountability, rather than amnesties, have led to an improvement in human rights. The stability-with-accountability approach suggests that increased enforcement mechanisms and the spread of norms must be combined with amnesties in order to have a positive effective. This is supported by the evidence that a clear shift away from amnesties has not accompanied the global accountability trend. Figure 1 shows that the use of amnesties has fluctuated: while the numbers of new amnesty laws reached their highest level in the early 1990s, and have declined ever since, existing amnesty laws continue to be in effect in many countries as shown in Figure 2. Very rarely have amnesty laws been repealed, though they have been circumvented in many cases. To date, therefore, we do not have incontrovertible evidence that trials have replaced amnesties and played a role by themselves in bringing improvements in human rights on their own. A compelling argument that could be made regarding timing, however, is that human rights advocates may not mobilize behind early trials, understanding that without a generational shift in the judiciaries these trials may render unjust verdicts. Political and judicial leadership behind trials is likely to emerge over time and unlikely to be present in the early years of the transition.
Types of Amnesties. Another explanation for the findings involves the types of amnesties that states implement. For example, recent amnesties may be more likely to be compatible with international law to avoid the International Criminal Court, ad hoc tribunals, or domestic legal challenges. They might exclude particular crimes absolutely prohibited by treaties, such as genocide, crimes against humanity, and torture. In the interest of stability, they might limit their scope to include only top officials behind the crimes, to prevent catalyzing the entire military against them, or only lower ranking officials to protect against mobilization by the former top leaders. The challenge to the justice balance approach, therefore, is that not all amnesties will effectively work with trials to bring about improvements in human rights. The analysis of the justice balance cases, however, suggests a different explanation for the compatibility between trials and amnesties.
First, strong evidence supports the assumption that amnesty laws provide some form of stability in the early years of transition. In some cases, self-amnesties allowed for extrication of the authoritarian regimes, paving the way for transition (e.g., Argentina, Chile, and Peru). Democratic governments subsequently accepted these amnesties through executive decree or legislation (although not before a trial of the regime leaders in the case of Argentina). In other cases, peace accords with amnesties ended civil conflict and permitted the transition to peace and democracy (e.g., El Salvador and Guatemala). In a third set of cases, democratic governments adopted decree laws that prevented prosecution or pardoned convicted authoritarian leaders in the interest of “national reconciliation” or “political stability” (e.g., Greece, South Korea, and Uruguay). While perhaps unnecessary, based on an exaggerated fear of authoritarian reversal, or designed as a facade to protect political alliances, amnesty laws gave fragile democratic governments flexibility to negotiate the transition.
More importantly, amnesties did not block subsequent trials. Civil society groups and courts challenged the amnesty laws, finding legal loopholes to circumvent them (i.e., Chile, El Salvador, Guatemala, Honduras, and Peru) or overturning them (i.e., Argentina, Bangladesh, and Uruguay) to bring perpetrators to trial for past human rights abuses. In other words, trials often played a key role in challenging and weakening and ultimately undermining amnesty laws. Indeed, in many cases amnesty laws continue to have legal standing or remain de facto, even when some trials continue to hold perpetrators accountable. There are only three known cases in which amnesty laws have been annulled. Two of them are in Latin America (Argentina, Uruguay); the third one is in the Asia-Pacific (Bangladesh). Thus, evidence suggests that despite the prevalence of amnesties, and even blanket amnesty laws, trials may still provide the necessary accountability to improve human rights.
Context. Improvements in human rights may also be due to other contextual factors associated with the transitional state and not the specific transitional justice choices that these states make. Some scholars view the improvements in human rights associated with transitional justice as endogenous. Particular factors may drive transitional justice choices and improvements in human rights. In other words, human rights improvements may not result from the transitional justice mechanism adopted, but rather from some other factors that also shape transitional justice decisions. In statistical language, transitional justice may be correlated with the error term.
An additional means to address this question is to track the changes in human rights measures of the countries that utilized trials and amnesties to examine key patterns. Initial findings do not confirm any clear patterns. The team did confirm, however, that amnesties and trials are not implemented only in states where human rights improvements have already occurred. In addition, the use of amnesties does not bring lower scores for human rights. Indeed, more often than not, human rights improvements occur at the time of amnesties. Amnesties cannot be assumed to have brought about those improvements, but the pattern shows that they have not harmed the process of improving human rights.
In short, regardless of the context, or starting point in terms of level of human rights violations, amnesties coupled with trials tend to be associated with improvements. Those improvements do not occur exclusively in countries with low levels of human rights protections or in those countries with already high levels of human rights improvements, as some scholars might assume.
Region. The regional explanation focuses on a potential bias in the results due to a prominence of Latin American cases that utilize amnesties and trials. Eight out of thirteen of the countries that have the trial-amnesty combination and improvements in human rights are Latin American. When the team analyzed those countries qualitatively, it observed that trials have occurred despite the authoritarian regimes’ self-amnesty and early democratic governments’ acceptance of those or adoption of other blanket amnesty laws. Amnesties seemed to offer new democracies a means by which they could protect themselves from potential threats from the old authoritarian forces. Amnesties also provided the means to negotiate peace in the Central American wars. Amnesties, however, did not prevent accountability in most of these cases. Our initial analysis of these cases show that a combination of factors allowed for trials to occur even in the context of far-reaching amnesty laws. Components that facilitated trials include mobilized victim-survivors and human rights communities, lower court decisions that tested the strength of the amnesty law, and Supreme Court decisions. The Inter-American Court of Human Rights has also played a much more significant role than the other regional courts around the world in adjudicating the amnesty laws of member countries.
In sum, the justice balance approach shows that despite domestic and global pressure and their success in increasing the number of human rights trials around the world, amnesties continue to exist. These amnesties have not prevented accountability, however. Indeed, the justice balance findings suggest that where amnesties and trials coexist, with or without truth commissions, countries are likely to experience improvements in human rights.
-  George W. Downs, David M. Rocke, and Peter N. Barsoom, “Is the Good News aboutCompliance Good News about Cooperation?,” International Organization, Vol. 50,No. 3 (1996), pp. 379-406.
-  Ross L. Matsueda, Derek A. Kreager, and David Huizinga, “Deterring Delinquents:A Rational Choice Model of Theft and Violence,” American Sociological Review,
-  Kim and Sikkink (2012-2013).
-  Olsen et al. (2010);Tricia D. Olsen, Leigh A. Payne, and Andrew G. Reiter, “Conclusion: Amnesty in the Age of Accountability,” in Amnesty in the Age of Human RightsAccountability: Comparative and International Perspectives, eds. Francesca Lessa andLeigh A. Payne (Cambridge and New York: Cambridge University Press, 2012).
-  Patrick Burgess, “De Facto Amnesty? The Example of Post-Soeharto Indonesia,” inAmnesty in the Age of Human Rights Accountability: Comparative and InternationalPerspectives, eds. Francesca Lessa and Leigh A. Payne (Cambridge and New York:Cambridge University Press, 2012).
-  In their quantitative study, Olsen et al. found that truth commissions, by themselves,produced statistically significant but negative findings for human rights measures.
-  See for example: Hun Joon Kim and Kathryn Sikkink, “Explaining the DeterrenceEffect of Human Rights Prosecutions for Transitional Countries,” International Studies Quarterly, Vol. 54, No. 4 (2010), pp. 939-963;Juan E. Mendez, “Accountability for Past Abuses,” Human Rights Quarterly, Vol. 19, No. 2 (1997), pp. 255-282;Diane F. Orentlicher, “Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime,” Yale Law Journal, Vol. 100, No. 8 (1991), pp. 2537-2615;Naomi Roht-Arriaza, “State Responsibility to Investigate and Prosecute Grave HumanRights Violations in International Law,” California Law Review, Vol. 78, No. 2 (1990),pp. 464-465;M. Cherif Bassiouni, “International Crimes: Jus Cogens and ObligatioErga Omnes,” Law and Contemporary Problems, Vol. 59, No. 4 (1996), pp. 66-68;Naomi Roht-Arriaza, ed., Impunity and Human Rights in International Law and Practice (New York: Oxford University Press, 1995);Michael Scharf, “The Letter of theLaw: The Scope of the International Legal Obligation to Prosecute Human RightsCrimes,” Law and Contemporary Problems, Vol. 59, No. 4 (1996), pp. 41-61.
-  See, for example, Jack Snyder and Leslie Vinjamuri, “Trials and Errors: Principleand Pragmatism in Strategies of International Justice,” International Security, Vol. 28,No. 3 (2003), pp. 5-44;Leslie Vinjamuri and Jack Snyder, “Advocacy and Scholarshipin the Study of International War Crimes Tribunals and Transitional Justice,” AnnualReview of Political Science, Vol. 7, No. 1 (2004), pp. 345-362;Jon Elster, Closing theBooks: Transitional Justice in Historical Perspective (New York: Cambridge UniversityPress, 2004);Mark Freeman, Necessary Evils: Amnesties and the Search for Justice(Cambridge and New York: Cambridge University Press, 2009).