Transitional justice from the Berlin Wall to the Arab spring

by Tim Shenk

Aryeh Neier, President of Open Society Foundations / Tim Shenk

Since the end of the Cold War, countries transitioning to democracy have faced many dilemmas related to human rights abuses committed by their former regimes. From Poland 20 years ago to Egypt today, new leaders must decide whether to prosecute former officials or grant them amnesty for political reasons.

Leading thinkers on transitional justice spoke in a February 10 panel discussion at the School of International and Public Affairs (SIPA) as part of the Harriman Institute’s lecture series on “Human Rights in the Post-Communist World.”

Jack Snyder, a political science professor who co-moderated the event, noted that scholarship on transitional justice increasingly focuses on the “politics of justice.” The power and interests of political figures often determine how past human rights abuses are addressed, he said.

Ruti Teitel, the international legal scholar who coined the term “transitional justice,” said that international law now requires governments to investigate human rights abuses. Victims have a “right to investigation,” which may limit a new government’s ability to grant amnesty.

Leslie Vinjamuri, a professor at the University of London, argued that transitional justice is dangerous in situations of ongoing conflict. Many academics argue that prosecuting human rights abusers leads to peace, but amnesties are often a better way to avoid conflict, Vinjamuri said.

Monika Nalepa, an assistant professor at the University of Notre Dame, argued countries face a peculiar dilemma in times of potential transition. The ruling regime may relinquish power if its leaders are granted amnesty. The opposition would rather negotiate a peaceful transition of power and an amnesty than fight a civil war.

Yet the two sides are unlikely to reach an agreement because of a “credible commitment” problem. The old regime cannot trust that an amnesty will be respected in the future.

Nalepa argued that, for this reason, peaceful transitions will not occur unless members of the new regime are also implicated in human rights abuses. In this case, both sides would rather avoid investigations for past abuses, so the old regime can hand over power without fear of prosecution.

Several other panelists disagreed with this theory. Tina Rosenberg, a journalist who covered Eastern Europe’s democratic transitions, noted that ruling and opposition parties are not monolithic and thus may not behave as Nalepa argued. During the transition in Poland, leaders of the Communist regime and the democratic opposition made commitments to each other that they later felt obligated to keep, Rosenberg said.

Aryeh Neier, founder of Human Rights Watch and president of Open Society Foundations, shared thoughts on the role of human rights advocates in creating transitional justice institutions. For example, Human Rights Watch led the call for an international criminal tribunal in the former Yugoslavia in 1992.

Scholars now debate whether these institutions promote peace and reconciliation, but the original purpose was more narrowly defined, Neier said.

“We wanted to get back to the idea that trials and prosecutions were an appropriate way to deal with serious violations of human rights,” he said. “Justice is an end in itself.”

Published in RightsNews Volume 29, no. 3, May, 2011.
Download issue as PDF