Notes on the development of "transitional justice" since 1945

By Helena Cobban ©2005

Readers may make "fair use" of the following, with due attribution. For permission to publish in paper form, or to send comments or queries, please contact Helena at <hcobban@aol.com>.

The era since 1945 has seen the development of the theory and practice of "transitional justice", the field to which South Africa's TRC belonged. Transitional justice is a relatively recent field of systematic enquiry that was still changing in significant ways well after 1990. In 1995, the American legal scholar Neil Kritz published a seminal, three-volume collection of works on the topic titled Transitional Justice: How emerging democracies reckon with former regimes, which dealt primarily with issues arising during processes of national-level democratization that had arisen since 1945.[1] The sub-title of Kritz's work provided probably the best description of the purview of the transitional justice field as it was understood in 1994-95.

Kritz himself has attributed authorship of the term "transitional justice" to Ruti Teitel, a legal scholar of Argentinian birth. In her important 2000 book, titled simply Transitional Justice, Teitel introduced the topic thus:

In recent decades, societies all over the world—throughout Latin America, East Europe, the former Soviet Union, Africa—have overthrown military dictatorships and totalitarian regimes for freedom and democracy. In these times of massive political movement from illiberal rule, one burning question recurs. How should societies deal with their evil pasts? … What, if any, is the relation between a state's response to its repressive past and its prospects for creating a 'liberal' order? What is law's potential for ushering in liberalization?[2]

The purview of (this strand of) the transitional justice field goes back to the transitions from Nazi or pro-Nazi rule to democracy that were made by (West) Germany and a number of other West European nations in the years after 1945. Kritz's work then followed the story of transitional justice as far forward as the cases of the central and east European societies that escaped from Soviet domination after the fall of the Berlin Wall in 1989. The vast majority of the cases he presented were those of generally well-infrastructured countries either in Europe or ruled by people of European cultural heritage;[3] countries, moreover, in which the main challenge facing society was that of escaping from a system in which the role of the state had previously been too great, rather than dealing with the effects of state failure.

Kritz's work surveyed the four major types of transitional-justice "tools" that governments undergoing significant rights-enhancing transitions in the decades after 1945 could choose among. These were:

1. national-level prosecutions of past malefactors;
2. the institution of vetting procedures to remove past malefactors from positions of power and responsibility;
3. the establishment of a scheme to provide restitution or reparations for past harms; and finally--
4. establishing a "truth commission" charged with creating a historical record of the abuses of the past.[4]

The countries studied in the present work chose among those four TJ mechanisms as follows:[5]

	National prosecutions	Vetting	Reparations	Truth Commission
Rwanda	yes, plus gacaca courts	yes	yes (planned)	no
South Africa	yes (threatened, not launched)	no	yes	yes
Mozambique	no	no	no	no

In 1994 and 1995, the studies that Kritz and a number of other scholars had done on the transitional justice issue proved extremely useful to the South Africans as they tried to figure out how they could create a body to consider and sift applications for the amnesties that the ANC negotiators had promised to the leaders of the apartheid regime's security forces. The body they chose to establish was the TRC. It built, in particular on the experiences the Chileans had had in running the National Commission on Truth and Reconciliation, which looked into allegations of serious rights abuse during the 17 years of Augusto Pinochet's rule (1973 through 1990.) Chile had been different from South Africa in that Pinochet only agreed to step down in return for a blanket amnesty for abuses committed during his time in power whereas the ANC had never promised a blanket amnesty to former perpetrators; so the TRC, unlike the Chilean Commission, was able to use the threat of possible prosecutions as a way to win more confessions from the perpetrators of past misdeeds. In many other respects, however, when the ANC government was crafting the legislation that established the TRC it was able to build effectively on thhe experiences of Chile and other countries had previously run successful truth commissions. Indeed, the short, elegant Foreword to Kritz's work was written by none other than Nelson Mandela.

Just as the works of legal scholars Kritz and Teitel helped establish a coherent narrative and analysis of developments in the legal portions of the transitional justice field, US scholar-practicioner Priscilla Hayner has been the field-defining analyst of the work of truth commissions. The earliest governmental commission that Hayner categorized as a "truth commission" was (perhaps surprisinglyly) one established by Uganda's Idi Amin in 1974.[6] Over the three decades that followed 1974 a total of 28 bodies were formed, nearly all by national governments, that have been identified as truth commissions; a listing of them can been found in Appendix 1 below. The pace of forming these commissions accelerated over the years: of the 28 listed in the Appendix, Idi Amin's was the only one formed in the 1970s. Six were formed in the 1980s; eleven in the 1990s; and nine between 2000 and 2004. The widely publicized workings of the South African TRC—which received much more, and more uncritical, adulation outside South Africa than inside it-- certainly helped in the years after 1995 to increase the popularity of this policy tool worldwide.[7]

Looking at the geographic spread of the countries on the table, ten were formed in Africa, ten in Latin America, four in Asia, and only two in Europe.[8] This geographic distribution is notably different from that of the cases presented in Kritz's Volume II. This fact perhaps indicates the fluidity in the purview of the transitional justice field in general (see below). It might also indicate significant differences among different cultural groups in the world regarding attitudes toward the value of truth-revelation: of the 15 European cases of "transition" presented by Kritz post-reunification Germany was the only one to establish an official truth commission.[9]

But what exactly qualifies a governmental commission to qualify as a truth commission, anyway? After all, the establishment of a "Commission of Inquiry" into many different kinds of recent events is a standard policy tool used over the centuries by governments of many different types; though they have been established—and crucially, their findings made known—more frequently by democratic governments than by governments of other kinds. So it is not easy to define the criteria by which any particular commission should be classified as a "truth commission" in the present (transitional justice-related) understanding of the term. The name that a particular commission carries gives no definitive clue as to whether it should qualify as a "truth commission"; those listed in the Appendix carried a wide variety of different names, many of which did not include the word "truth".[10] And indeed, no official Commission of Inquiry of any kind would ever present itself publicly as delivering anything other than "the truth", or at least a good portion of the truth, to the commissioning authorities or to the public!

At a minimum, though, a "truth" commission should surely be under some obligation to present its findings to the public, or more broadly, to allow the public full access to its findings—though we can note that seven of the 28 "truth commissions" included in the Appendix completed (or abandoned) their work without doing this. A further five of the commissions had not completed their work by the end of 2004. Sixteen had completed their work and had published their reports by then.

Commissions regarded as "truth commissions" have nearly always been established in circumstances in which a distinct political transition is already underway or is the clear goal of the commissioning authorities. But what kind of a transition? It is significant in the context of the present study that the cases presented in Kritz's study did not include many cases of countries that at the time the commission was formed were tranitioning out of serious civil conflict or any of the numerous, notable cases of countries in Asia and Africa that in the second half of the twentieth century achieved a transition out of rule (primarily in a colonial context) by foreign powers. Regarding transitions out of civil conflict--or indeed, any kind of protracted conflict-- a very good case can be made that the termination of such conflicts itself leads to a significant improvement of the rights situation of members of the affected societies. Regarding transitions out of foreign rule, it is true that not all such transitions led to the institution of democratic regimes, though some did. But in nearly all the cases of countries that won their independence from foreign rule in the 20th century, the rights situation of the citizens of such countries improved significantly with the arrival of independence.[11] (In addition, in many countries the ending of colonial rule brought to an end a protracted and casualty-laden struggle for national independence; in those countries the rights situation of the citizens was doubly enhanced by the winning of independence.)

If we were to change the definition of the kind of transition addressed by the field of transitional justice from simply the "transitions out of authoritarianism" definition used by Kritz and Teitel to a broader definition of "transitions to a significantly more rights-respecting situation", then that shift would bring into the purview of the field both the transitions many countries have made out of civil conflict and those that numerous countries effected out of rule by foreign powers. Until now, "transitions out of civil conflict" have been shoe-horned into the transitional justice field mainly by virtue of the role countries undergoing such transitions have made to the development of the important tool of truth commissions.

In many cases, as in Mozambique and South Africa, the intentional institutionalization of democratic practices has been an integral and helpful part of conflict termination. In other cases, it has not. But whether conflict termination included intentional democratization or not, the successful ending of protracted conflict itself improves the rights situation of members of the affected society. In general, however, redefining the scope of the transitional justice field to include all kinds of transitions that are intended to be "transitions into a significantly more rights-respecting situation" would allow the gathering of both conflict-terminating and "national independence" transitions into the field while also, valuably, keeping the attention of scholars and practicioners on the central issue of rights.

Of the 28 commissions listed below, at least eight were formed as part of a conflict termination, and the proportion of commissions formed within that political context increased markedly throughout the 30-year history of truth commissions. Moreover, it was in those circumstances—the establishment of commissions as part of conflict-termination efforts--that the U.N. came to play a role in the formation of truth commissions, as it did in the case of six of the commissions listed. The first UN-related commission was that established in 1992 in El Salvador, where it seems to have made a generally good contribution to conflict termination and some contibution to building a climate of increased political openness. Since then, the UN has sponsored the formation of five other truth commissions in what were hoped to be conflict termination situations: in Burundi (1995), Guatemala (1997), Sierra Leone (2000), East Timor (2001), and Liberia (2003). (In East Timor, the political context was also one of gaining independence from foreign rule.)

I would also note that if the "transitional justice" field is indeed reconceived as including all cases of "a transition to a significantly more rights-respecting situation", as sketched above, numerous other governmental and local-level policies and mechanisms that facilitate that transition while also dealing with the legacies of past rights abuses would also need to be brought into the purview of the TJ field. Such policies and mechanisms would include (but would probably not be limited to):

• all kinds of peacebuilding cultural resources within the community itself, some of which might also be formally encouraged and/or adopted by the government; and
• measures to "rectify" past socioeconomic injustices.

This would certainly help to transform the field into one that adopts a more holistic approach to the wellbeing of people and their societies, in line with the recommendations already espoused by, for example, Rama Mani.[12]

Appendix 1: Some notable truth commissions since 1974

List compiled by Helena Cobban, February 2005

(My sources for this listing are as follows: Appendix 1, Chart 1, of  Priscilla Hayner, Unspeakable truths: Confronting State Terror and Atrocity (New York and London: Routledge, 2001); the U.S. Institute of Peace's "Truth Commissions Digital Collection", available at <http://www.usip.org/library/truth.html>; the country studies and various other online resources available from the website of the International Center for Transitional Justice, <http://ictj.org/>; and, for the first item in Column 6, Freedom House's historical listings of the political rights and civil liberties situations of all the world's countries, available at <http://www.freedomhouse.org/ratings/allscore04.xls>.  For column 6, I looked primarily at whether the three-four years prior to the establishment of the commission had seen an improvement in political rights and civil liberties.)

Please feel free to use this compilation, but give me due credit.  I'd appreciate knowing if you plan to use it.  Also please send me any comments, suggestions, or queries you have.  Thanks.  ~Helena.

1. Country	2. Year the commn started work	3. Period covered	4. Report published by government? Not finished work by Feb. '05	5. Estab'd nationally or otherwise?	6. Estab'd after some democratiz'n? (/ Did democrtn follow?)	7. Estab'd as explicit part of  conflict terminat'n? (Did successful peacebldg follow?)
Uganda	1974	1971-74	Yes, 1975	National	No / No	No / No
Bolivia	1982	1967-82	No (commn disbanded)	National	Yes
Argentina	1983	1976-83	Yes, 1985	National	Yes
Uruguay	1985	1973-82	Yes, 1985	National	Yes
Zimbabwe	1985	1983	No (report kept confidential)	National	No
Philippines	1986	1972-86	No	National	Yes
Uganda	1986	1962-86	Yes, 1995	National	No
Nepal	1986	1962-86	Yes, 1994	National	Yes (modest)
Chile	1990	1973-90	Yes, 1991	National	Yes
Chad	1991	1982-90	Yes, 1992	National	No
Germany (for East  Germany)	1992	1949-89	Yes, 1994	National	Yes
El Salvador	1992	1980-91	Yes, 1993	Establishment  mandated by UN-brokered peace accord	No / Yes, modest	Yes / Yes
Sri Lanka	1994	1988-94	Yes, 1997	National	No
Haiti	1995	1991-94	Yes, 1996	National	Yes (modest, and not sustained)
Burundi	1995	1993-95	Yes, 1996	U.N. Security Council formed and ran it	No / No	Yes / Not really
South Africa	1995	1960-94	Yes, 1998	National	Yes / Yes	Yes / Yes
Ecuador	1996	1979-96	No (commn disbanded)	National	No
Guatemala	1997	1962-96	Yes, 1999	Establishment  mandated by UN-brokered peace accord	No / No	Yes / Yes
Nigeria	1999	1966-99	No (but civil-society groups released the seven-volume text in Jan. '05)	National	Yes
Panama	2001	1968-89	Yes, 2002	National	Yes, 10 years after cataclysmic democratization event
Peru	2001	1980-2000	Yes, 2003	National	Yes	Yes
Serbia & Montenegro	2001	1991-2001	No (commn disbanded when office of federal president was abolished)	National, but responding to a lot of western pressure	Yes
Ghana (National Reconciliat'n Comm'n)	2002	1957-93	Report presented to president, Oct. 2004.  Not published.	National	Yes, but slow
The above 23 commissions had apparently completed their work by February 2005.  Of them, 3 were disbanded before they finished their work, and 4 apparently finished their work and presented reports to the government which then did not allow their publication (though in Nigeria, civil-society groups released what they claimed was the text.) 16 commissions had presented their reports and seen the reports made public by the commissioning authorities. The commissions that follow had not completed their work by February 2005:
Sierra Leone	2000	1991-99	Started public hearings, April '03	Establishment  mandated by UN-brokered peace accord	Yes (but very modest)	Yes
East Timor	2001	1974-99	Report promised July '05	Establishment  mandated by UN transitional administration	Yes, including also decolonization	Yes
Liberia	2003	?	(Not started work, Feb '05)	Establishment  mandated by UN-brokered peace accord	No	Yes
Paraguay	2003	1954-89	Commn estabd Sept. '04	National	No
Morocco	2004	pre-1999 (?)	Report scheduled for April '05	National	No
By region (N = 28)	# of commissions	Chronological trends	# w/ officially published report, as propn of those that finished work (by Feb 05)
Africa	10	spread throughout 3-decade period	5 / 8
Latin America	10	cluster in early 80s, then spread thru'out period	7 / 9
Asia	4	two in 80s	2 / 3
Europe	2		1 / 2
(Morocco)	1		(not finished)
(Haiti)	1		1 / 1
Of all the above 28 commissions, one was established and run by the UN Security Council; five had their establishment mandated by a UN-brokered peace accord, and 22 were established by national authorities.

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[1] Neil J. Kritz, Transitional Justice (Washington DC: U.S. Institute of Peace Press, 1995).

[2] Teitel, Ruti G., Transitional Justice (New York: Oxford U.P., 2000), p.3.

[3] This was true of 19 of the case studies he presented in Vol. II of his work. The others were South Korea and Uganda.

[4] This categorization corresponds to the categories used by the New-York-based International Center for Transitional Justice. It also corresponds roughly to the various chapter titles in Teitel's book, which include "Criminal Justice", "Administrative Justice", "Reparatory Justice", and "Historical Justice". Teitel has one further substantive chapter: "Constitutional Justice".

[5] The present text was originally composed to be part of my study on transitional justice issues in the three countries mentioned.

[6] Though Amin's pioneering role in this may seem hard to believe, Hayner quotes human-rights advocate Richard Carver as concluding that, "In view of the considerable practical difficulties [Amin's Commission] faced and the highly unfavorable political climate in which it operated, the Commission's achievement was remarkable." The Amin government did publish the report. Though its publication did not prevent Amin from continuing to commit numerous very serious abuses, Carver also argued that the Commission's work had not, in the end, been a waste of time since it had at least gotten the abuses of the pre-1974 period incontrovertibly onto the public record. See  Priscilla Hayner, Unspeakable truths: Confronting State Terror and Atrocity (New York and London: Routledge, 2001), p.52.

[7] We should note, too, the role that the Ford Foundation and other US foundations have played in trying to spread the popularity of this tool, primarily by funding the establishment of the New-York-based International Center for Transitional Justice.

[8] The other two, not part of this regional aggreggation, were in Haiti and Morocco.

[9] The other European truth commission was one that was established by Vojislav Kostunica after he was elected President of Serbia and Montenegro in late 2000. But when the office of federal president was abolished, the commission was disbanded before completing its task. For details, see: <http://www.ictj.org/downloads/ICTJ_Serbia.pdf>.

[10] Plus, many people raised in a post-George Orwell era can be extremely wary of any body that promises to deliver "the" truth.

[11] This is not to deny that in a number of post-independence countries the rights situation subsequently deteriorated severely.

[12] See Rama Mani, Beyond retribution: Seeking justice in the shadows of war (Cambridge, UK: Polity Press, and Malden MA: Blackwell Publishers, 2002)