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Theoretical Arguments about the Origins and Diffusion of Transitional Justice Mechanisms

The transitions in the third wave of democracy are a necessary factor to explain both the emergence and diffusion of the norm of individual criminal accountability.[1] However, democracy alone is not in any sense a sufficient condition because the earlier second wave of democratization was not accompanied by human rights trials. Even in the third wave, fewer than half of the countries that transitioned to democracy held human rights trials. Because transitional justice has followed the global wave in democratization, however, it will not extend to regions of the world where democratic transitions have not taken root, for example, in the Middle East, or where democratic reversals are occurring, as in Russia and Central Asia. Because the Asia-Pacific region has experienced somewhat fewer transitions to democracy than other regions such as Latin America and Eastern Europe, by definition, it will not have had the same opportunities to adopt transitional trials and truth commissions.

One explanatory factor for the use and diffusion of transitional justice is the degree to which relevant international legal regimes and institutions are in place to make accountability possible. Those states that have ratified international and regional human rights law with provisions for accountability are more likely to use human rights prosecutions.[2] International human rights institutions exist at both the global level and in some regions. Thus there is considerable regional variation in human rights law, regarding the degree to which different countries in the region have ratified international human rights treaties and have set up regional human rights institutions. Three regions have full-fledged regional human rights regimes: Europe, the Americas, and Africa. These international and regional human rights institutions provide crucial legal doctrines that have facilitated human rights prosecutions, particularly in the Americas. For example, in the Americas, the Inter-American Court of Human Rights has increasingly ruled that countries have an obligation to provide remedies to victims of human rights violations, and these remedies need to include provisions for legal accountability. In addition, the international legal doctrine that crimes against humanity that are not subject to statutes of limitations gave invaluable legal tools for human rights litigation in the Americas. It is interesting that the Asia-Pacific region, however, has achieved relatively high levels of accountability without the support of a regional human rights institution.

More recently, the International Criminal Court (ICC) with its doctrine of complementarity has provided a powerful impetus for individual criminal accountability. Under complementarity, the ICC can take action against perpetrators of war crimes, genocide, or crimes against humanity if states are unwilling or unable to hold them accountable. But the ICC can act only if states have ratified the Rome Statute of the ICC, or if a case is referred to it by the UN Security Council. Of the current 121 States Parties to the ICC, 16 are from the Asia-Pacific region.[3] While not an inconsiderable number of ratifications, the ICC can act only in the cases of gross violations of core human rights that occur after ratification, so most of the human rights episodes considered in this volume are not subject to ICC jurisdiction.

Research on the origins of transitional justice mechanisms suggests that early norm adoption is the result of domestic political struggle and norm entrepreneurs. Domestic human rights organizations with transnational linkages were especially important in promoting the adoption of human rights prosecutions as well as truth commissions. It is noteworthy that those Asia-Pacific countries that have adopted transitional justice mechanisms most fully, such as South Korea and Indonesia, are among the countries in the region with the most active civil society organizations (see Chapters 3 and 7).

How countries respond to demands from civil society is also relevant to understanding when transitional justice mechanisms were adopted.

In order to pursue transitional justice in some counties, civil society groups first had to work to challenge amnesty laws that blocked prosecutions. Without political or judicial leadership to attempt to circumvent or displace amnesty laws, trials become less likely. Our database thus coded not only the existence of amnesty laws, but also legal challenges to those laws. We found 161 challenges to fifty-six amnesties from 1970 to 2011. In relative terms, Asian countries have had slightly more challenges to their amnesty laws than Europe and Africa: five (3 percent) of challenges in Asia compared to four (2 percent) in Europe and seven (4 percent) in Africa. None of the regions compare, however, with the high number of challenges in Latin America 145 or (90 percent), which have resulted in innovative mechanisms for bypassing or overturning amnesty laws and thus allowed for prosecutions. The high proportion of challenges reflects the degree to which social movements have effectively demanded accountability and the capacity of the legal system to respond to those demands. Civil society activity in the Asia-Pacific transitional countries is reflected in the legal challenges to amnesty laws in four countries: Bangladesh, Cambodia, South Korea, and Thailand. In addition, the challenges in Bangladesh led to the repeal of the 1976 amnesty law, making it one of only three countries in the world to do so.[4]

Once practices of individual criminal accountability had emerged and were starting to spread, the most important predictor for adoption of prosecutions was the actions of neighboring countries. Hun Joon Kim has found, for example, that the single most important determinant for whether a country will use a truth commission or human rights prosecutions is the number of other states in that region that have previously used a truth commission or prosecutions.[5] Early norm adoption is the result of domestic political struggle and norm entrepreneurs, but later adoption is the result of a combination of internal demands and external diffusion of models. Norms emerge and diffuse first within regions and only later jump from one region to another and globally. For this reason, the spread of the justice norm has been, and will continue to be, regionally uneven. Regional diffusion patterns lead to a kind of snowball effect; regions in which transitional justice started early are likely to see rapid diffusion while regions with initially few early examples of transitional justice will lag behind.

In summary, because Asia experienced relatively fewer democratic transitions during the third wave and does not have a regional human rights law system or institution, we would have expected the process of accountability to be slower in Asia than in Europe, Latin America, and Africa. The level of transitional justice in the region, however, is somewhat higher than anticipated. The increase in the use of various forms of transitional justice mechanisms in the region as documented in this chapter and in the entire edited volume may be the result of the active role of civil society organizations in key countries and regional diffusion effects that have multiplied the use of transitional justice in the region.

  • [1] Samuel P. Huntington, The Third Wave: Democratization in the Late Twentieth Century(Norman, Oklahoma: University of Oklahoma Press, 1991).
  • [2] Geoff Dancy and Kathryn Sikkink, “Ratification and Human Rights Prosecutions:Toward a Transnational Theory of Treaty Compliance,” New York University Journalof International Law and Politics, Vol. 44, No. 3 (2012), 751-790.
  • [3] These include: Afghanistan (2003), Bangladesh (2010), Cambodia (2002), Cook Islands(2008), Fiji (1999), Japan (2007), Marshall Islands (2000), Mongolia (2002), Nauru (2001) , New Zealand (2000), Philippines (2011), Republic of Korea (2002), Samoa (2002) , Tajikistan (2000), Timor Leste (2002), and Vanuatu (2011).
  • [4] The other two cases are Argentina and Uruguay.
  • [5] Hun Joon Kim, “Structural Determinants of Human Rights Prosecutions after Democratic Transition,” Journal of Peace Research, Vol. 49, No. 2 (2012), 305-320;andHun Joon Kim, “Why and When Do Countries Seek to Address Past Human RightsViolations after Transition? An Event History Analysis of 100 Countries Covering1980-2004” (presentation, Annual Meeting of the International Studies Association,Chicago, Illinois, February 28-March 3, 2007).
 
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