What insights into the accountability-with-stability theory do the cases examined in this volume provide? In brute empirical terms, the Asia- Pacific has exhibited the same upward trends in the use of trials and of amnesties that has been observed on a global level. While trials were used in four of the six cases examined, all six employed an amnesty at some point prior to, during or after their transition. What is more, three states, the Solomon Islands, East Timor and South Korea used a combination of all three major transitional justice mechanisms, trials, amnesties and truth commissions. That is, four of the six cases under consideration (East Timor, Cambodia, the Solomon Islands and South Korea) implemented one of what Payne and her co-authors identify as the two optimal combinations of transitional justice measures. As we have already seen, however, when we delve below the surface of these combinations, the outcomes they have achieved are not entirely clear.
Although multiple transitional justice mechanisms were used in most of our cases, our authors revealed that the relationships between and dynamics created by particular combinations of measures are highly complicated. In the cases of Aceh, Indonesia and the Solomon Islands, amnesty provisions included in the Helsinki MoU and the Townsville Peace Agreement, respectively, helped to ‘end civil conflict and permitted the transition to peace’, thus contributing to stability.19 However, in Aceh the amnesty has directly blocked the pursuit of criminal trials and the issue of impunity has proved to be an obstacle to the establishment of a truth and reconciliation commission. By contrast, in the Solomon Islands, amnesties were side-stepped in order to allow prosecutions to take place, trials have been followed by a TRC, and the issue of amnesty is once again on the agenda as some wish to round out the transitional justice process with one final grant of impunity. In the case of Cambodia, the 1996 Royal Pardon was, according to Ainley, ‘useful in bringing peace.’20 For more than a decade it blocked accountability, before being overcome in the pre-trial hearings of Case 002 at the ECCC. In East Timor, amnesties and trials were pursued concurrently, on a selective basis, while establishing a connection between amnesties and other measures is difficult for the case of Sri Lanka.
The patterns according to which the states of the Asia-Pacific implemented different combinations of transitional justice mechanisms raise two key questions about the idea of accountability-with-stability. Is the decision to follow amnesties with prosecutions evidence of ‘a functional relationship’ between various transitional justice measures, or does it signify the triumph of accountability over the culture of impunity? And, do amnesties, through their contribution to stability or other effects, facilitate the pursuit of accountability in the future? With regard to the first question, the cases examined in this volume appear to suggest that both may be the case. In the cases of East Timor, Cambodia and the Solomon
- 19 Aspinall and Zain, this volume.
- 20 Ainley, this volume.
Islands, some sort of at least minimally functional relationship was forged between the work performed by amnesties and that of prosecutions. Yet, in the latter two cases, the addition of criminal trials to the transitional justice process also marked a sort of triumph (if limited and minimal) of accountability over impunity.
With this, the second question thus comes into play. Two possible pathways can be identified. The first is relatively simple: amnesties help create peace and stability and, in those conditions, the pursuit of prosecutions (sometimes some years later) is made possible without jeopardising the transition that has taken place. The second relates to Sikkink’s normative socialisation argument. Payne and Sikkink thus argue that ‘amnesty laws and accountability efforts set in motion dramatic and public debates, establishing a new justice norm to replace the prior culture of amnesty.’ What is more, they also add that ‘some evidence suggests that where amnesties exist, mobilisation to undermine them leads to trials, a pathway to accountability and deterrence that is less likely where no amnesty law exists to condemn domestically and internationally.’21 Precisely which, if either, of these pathways has been at play in the cases of the Asia-Pacific remains unclear at present. Amnesty laws implemented in Aceh, the Solomon Islands, Cambodia and East Timor have certainly given rise to debates about their legitimacy, effectiveness and appropriateness, but we have not yet found evidence that these debates further facilitated the adoption of accountability measures. In Aceh, trials have not followed criticisms of its amnesty law, while in the Solomon Islands and Cambodia decisions to prosecute perpetrators of human rights violations appear to have been made independently of pre-existing amnesties and concerns over their legitimacy. Interestingly, in the cases considered in this volume, more heated debates about transitional justice measures tended to centre on the conduct, effectiveness and outcomes of holding trials.