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HUMAN RIGHTS QUARTERLY
How “Transitions” Reshaped Human Rights: A Conceptual History of Transitional Justice
This article clarifies the origins of the field of transitional justice and its preliminary conceptual boundaries. I argue that the field began to emerge in the late 1980s, as a consequence of new practical conditions that human rights activists faced in countries such as Argentina, where authoritarian regimes had been replaced by more democratic ones. The turn away from “naming and shaming” and toward accountability for past abuse among human rights activists was taken up at the international level, where the focus on political change as “transition to democracy” helped to legiti- mate those claims to justice that prioritized legal-institutional reforms and
* PaigeArthurisDeputyDirectoroftheResearchUnitattheInternationalCenterforTransitional Justice (ICTJ), where she currently manages a project on identity politics and transitional justice. For more than five years, she was an editor of the journal Ethics & International Af- fairs, published by the Carnegie Council for Ethics in International Affairs. She was also the Senior Program Officer for the Ethics in a Violent World initiative at the Carnegie Council. Her most recent work includes this history of the field of transitional justice and an article on transitional justice as a response to ethnic conflict. She has also published articles on political violence, decolonization, and identity politics in Theory & Society, Ethics & In- ternational Affairs, and the book Race After Sartre (Jonathan Judaken ed., 2008). She holds a Ph.D. in European history, focusing on European decolonization, from the University of California, Berkeley, and a B.A. in International Relations from the Johns Hopkins University. Her first book, Unfinished Projects: Decolonization and the Philosophy of Jean-Paul Sartre, (Forthcoming Verso Books in 2010).
I would like to thank the following people for graciously agreeing to be interviewed: Juan Méndez, José Zalaquett, Jaime Malamud-Goti, Margo Picken, Abraham Lowenthal, Tim Phillips, and Alice Henkin. Special thanks go to Tim Phillips for opening up the papers of the Project on Justice in Times of Transition to my research. Finally, thanks also owed to my ICTJ colleagues Pablo de Greiff, Mark Freeman, and Louis Bickford for comments on previous drafts of this article.
Human Rights Quarterly 31 (2009) 321–367 © 2009 by The Johns Hopkins University Press
HUMAN RIGHTS QUARTERLY Vol. 31
responses—such as punishing leaders, vetting abusive security forces, and replacing state secrecy with truth and transparency—over other claims to justice that were oriented toward social justice and redistribution. I end by discussing the many ways in which these initial conceptual boundaries have since been tested and expanded.
Reflecting in 1989 on the question of how torture victims in Brazil, Uruguay, and repressive regimes around the world might find some measure of justice for their suffering, New Yorker writer Lawrence Weschler, with his usual eloquence, went straight to the heart of the matter. There was a “primordial moment which has desperately to be addressed—and as desperately by the torture society as by the torture victim.” Questions needed to be answered: “Who was there? Who was screaming . . .? Who, even now, will dare to hear . . .? Who will be held accountable? And who will hold them to account?”1 But, there was a problem. “Good people,” he offered, “will disagree on how that holding to account ought to proceed in the context of real-life, often exceptionally precarious political situations.”2
Weschler had been a part of a “remarkable group of activists and schol- ars,” who, as he described it, convened in November 1988 to discuss how successor governments should deal with the crimes of their predecessors. The meeting, which was organized by the Aspen Institute and funded by the Ford Foundation, aimed to sort through the moral, political, and legal implications of recent trials, commissions of inquiry, purges, and other mea- sures intended to hold previous regimes to account for systematic human rights abuses, as well as to foster a transition to democracy. “Over and over again,” Weschler wrote, “countries as varied as Uganda, Argentina, South Korea, Chile, South Africa, Brazil, The Philippines, Uruguay, Guatemala, and Haiti (all of whom were represented at the Aspen Conference) and the Soviet Union, Poland, Czechoslovakia, and China (which were not) con- front the same sorts of questions as they attempt to move from dictatorial to democratic systems of governance—in essence, the question of what to do with the former torturers persisting in their midst.”3
The case of Argentina loomed large. With the collapse of the military dictatorship and the election of Raul Alfonsín in 1983, there had been a vigorous public debate about who should be punished for human rights
1. Lawrence weschLer, a MiracLe, a Universe: settLing accoUnts with tortUrers 242 (1998).
3. Lawrence Weschler, Afterword, in state criMes: PUnishMent or Pardon 89, 90, 92 (Justice
and Society Program of The Aspen Institute ed., 1989).
2009 How Transitions Reshaped Human Rights 323
violations and what should be done for victims of those violations. In the foreground of the debate, however, was always the threat to the stability of the new regime that such actions might pose. Alfonsín’s government opted for limited prosecutions and, in a dramatic move, put the former junta lead- ers on trial. It also convened a commission of inquiry to find out what had happened to people who had been “disappeared” by the state security forces. Jaime Malamud-Goti, one of the chief architects, along with Carlos Nino, of Alfonsín’s prosecutions policy, argued at the Aspen Institute conference that prosecutions were not only a response to victims’ thirst for justice: “We agreed with the view that trying the perpetrators in the military of the worst crimes would contribute to the consolidation of democracy by restoring confidence in its mechanisms.”4 However, the administration was divided. The minister of defense, who had the most direct relations with the military, opposed the policy on the grounds that it risked a potentially disastrous political backlash—perhaps even a military coup.5 Malamud-Goti and Nino worried that the judiciary, some of which was held over from the previous regime, would obstruct the prosecutions policy. Under severe pressure from the military, after a series of highly publicized trials and the publication of the commission of inquiry’s report, Never Again, the government put an end to new prosecutions with the so-called Full Stop Law of 1986 and Due Obedience Law of 1987. A later government subsequently pardoned those still serving prison sentences.
The questions raised by the Argentine case were not only ones of jus- tice: Whom to punish, by what authority, and on what grounds? What to do for victims and their loved ones? Rather, they were questions about justice and prudence: How to balance competing moral imperatives, reconcile legitimate claims for justice with equally legitimate claims for stability and social peace, and foster the relationship between justice for crimes of the past and a more just political order in the present.
A. A “Field” of Transitional Justice
At the Aspen Institute conference, José Zalaquett, a future commissioner of the Chilean National Commission on Truth and Reconciliation, reflected on the situation human rights activists faced in Latin American countries where repressive regimes had recently crumbled. “Experience has shown,” he said, “that dealing with transitional political situations is a new area of
4. Jaime Malamud-Goti, Trying Violators of Human Rights: The Dilemma of Transitional Democratic Governments, in state criMes, supra note 3, at 71–72.
5. Telephone Interview with Jaime Malamud-Goti, Director, Carlos Nino Institute, University of Palermo, Argentina (1 Oct. 2007).
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human rights practice that poses some complex ethical, legal and practical questions”—questions that no one was yet in a good position to answer.6 Six years later, at a conference on “Dealing with the Past” in post-Apartheid South Africa, he came to the conclusion that “[a] pool of world experiences is contributing to an understanding of the lessons to be learned about jus- tice in the process of transition.”7 This essay examines the shift, implied in Zalaquett’s observations, from the recognition of new practical dilemmas to the development of a knowledge-base to address those dilemmas through the emergence of a new field called “transitional justice.”
In particular, this article looks at how a certain understanding of “transi- tion” helped to shape the conceptual contents of a new field. The field of “transitional justice”—an international web of individuals and institutions whose internal coherence is held together by common concepts, practical aims, and distinctive claims for legitimacy—began to emerge as a response to these new practical dilemmas and as an attempt to systematize knowl- edge deemed useful to resolving them.8 The field of transitional justice, so defined, came directly out of a set of interactions among human rights activists, lawyers and legal scholars, policymakers, journalists, donors, and comparative politics experts concerned with human rights and the dynamics of “transitions to democracy,” beginning in the late 1980s.9
One window into understanding how transitions helped to structure this new field—which would later crystallize around such organizations as the US-based Project on Justice in Times of Transition (1993), the South Africa–based Justice in Transition (1994), and an international NGO called the International Center for Transitional Justice (2001), as well as pockets
6. José Zalaquett, Confronting Human Rights Violations Committed by Former Governments: Principles Applicable and Political Constraints, in state criMes, supra note 3, at 26.
7. Aryeh Neier, José Zalaquett & Adam Michnik, Why Deal with the Past, in deaLing with
the Past: trUth and reconciLiation in soUth africa 1, 8 (Alex Boraine & Janet Levy eds., 2d
8. For an application of the idea of “internal coherence” to transitional justice, see Pablo
de Greiff, Introduction: Repairing the Past: Compensation for Victims of Human Rights
Violations, in the handbook of reParations 1 (Pablo de Greiff ed., 2006).
9. This article does not represent an analysis of a field, in the sense advocated by field-theorist Pierre Bourdieu, but rather a conceptual history—which itself offers some clues for such an analysis. Thus, it does not advance a methodologically rigorous understanding of the word “field,” in the sense of a structured set of relations among positions, occupied by actors with a particular set of dispositions, and which are hierarchically ordered and operate according to a distinctive, internal logic. However, the “looser” understanding of the word “field” used throughout this article does bear some resemblance to this concept, in that I identify as important features of the field of transitional justice the facts that it: 1) is clearly distinguishable from the field out of which it emerged, which is the field of human rights; 2) it implies a set of actors who have a set of common aims, and who are thus oriented toward one another in their practice; 3) it has developed institutions that advance those aims; and 4) it advances distinctive criteria of judgment
2009 How Transitions Reshaped Human Rights 325
within other NGOs, universities, and international institutions—is a series of conferences that took place in the late 1980s and early 1990s. At the 1988 Aspen Institute conference, “State Crimes: Punishment or Pardon,” the 1992 Charter 77 Foundation conference in Salzburg, Austria, “Justice in Times of Transition,” and the 1994 Institute for Democracy in South Africa (IDASA) conference, “Dealing with the Past,” political actors, human rights activists, and observers from around the world were convened in order to compare experiences and discuss options. Each of these conferences not only featured the same kinds of participants (in terms of professional competencies), but they also had many overlapping participants, including Zalaquett, Malamud-Goti, Aryeh Neier, Juan E. Méndez, Diane Orentlicher, Lawrence Weschler, Alice Henkin, Tim Phillips, and Adam Michnik.10 More- over, each was structured in a similar way: they dealt with a distinct set of measures—prosecutions, truth-telling, restitution or reparation, and reform of abusive state institutions—whose aims were to provide justice for victims and to facilitate the transition in question. The conferences optimized the possibility for comparative analysis of transitional “dilemmas.”
In examining how transitions “mattered” to the emergence of a distinctive field, one goal is to offer some preliminary answers to the question of why a field of transitional justice emerged at the time that it did and in the form that it did.11 However, this article focuses on only one aspect of this question: the particular and distinctive conceptual contents of transitional justice. Although some have dismissed the relevance of the word “transitional” as a kind of syntactical error, this article contends that the idea played an important role in shaping understandings of the dilemmas that actors faced, as well as in their justifications for their actions and judgments. “Transition”—and, more specifically, “transition to democracy”—was the dominant normative lens through which political change was viewed at this time, and thus attending to its distinctive contents should shed some light on the emergence of the
10. See the annex at the end of this article showing the overlap of participants, as well as a list of all participants at the three conferences.
11. It should be noted that my choice of the word “field” is made in contrast to Kathryn Sikkink and Carrie Booth Walling’s word “network.” Sikkink and Walling have done groundbreaking work on the question of how international human rights networks have been used to raise the salience of accountability claims made on the domestic level. This is not the question addressed in this article, however. This article describes how a distinct field of activity, known as “transitional justice”—and not just “human rights”— came into being. This question is related to the international human rights networks they address, but it is not reducible to it. That is, it is entirely possible that domestic human rights groups seeking to advance accountability claims could have leveraged their international networks to aid their causes—but without a distinct field of transi- tional justice ever coming into existence. See Kathryn Sikkink & Carrie Booth Walling, Argentina’s Contribution to Global Trends in Transitional Justice, in transitionaL JUstice in the twenty-first centUry 301 (Naomi Roht-Arriaza & Javier Mariezcurrena eds., 2006).
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field. Indeed, attending to what was understood by transition helps to clarify what was considered to be an appropriate justice measure. It explains why the measures of prosecutions, truth-telling, restitution, and reform of abusive state institutions—not some other measures of justice, such as those associ- ated with claims for distributive justice—were recognized as the legitimate justice initiatives during a time of political change.
Though this is only one small part of the story, it is a significant one because these understandings were crucial to structuring the initial con- ceptual boundaries for the field. These are boundaries that have since been consistently pushed, sometimes in response to practical difficulties encoun- tered in new political contexts, and sometimes through reflection on the part of those working within the field itself. Thus, this article does not look at the shifts in practice of human rights activists in the 1980s—that is for another essay. This article also explicitly avoids analysis of justice efforts in single countries (Argentina, for example), because the aim is to show that the field of transitional justice emerged at an international level.12 Indeed, part of the distinctive character of the field is that its knowledge-base has always been comparative. It has attempted to devise typologies of experi- ences and systematic knowledge of (often disparate) country contexts. This fact can be seen in the early conferences: each of them was structured around the principle of comparing national experiences among a diverse group of international participants, rather than the principle of identifying (and exporting) an ideal-type.
To illustrate the argument, this article first makes a case for identifying the late-1980s to mid-1990s as the period when the field first began to emerge. A crucial piece of evidence here is the coining of the phrase “transitional justice.” The term was invented as a device to signal a new sort of human rights activity and as a response to concrete political dilemmas human rights activists faced in what they understood to be “transitional” contexts. Having established this period as a plausible starting point, the article then turns to a consideration of what “transitions” meant at the time, in order to have a better understanding of how it might have shaped understandings of the kinds of justice claims that were considered legitimate or illegitimate in a period of transition. The article then weaves these strands together by look- ing at a particular case: the 1988 Aspen Institute conference, which was the first of a cluster of meetings that helped to clarify and solidify a conceptual framework for an emerging field. This conference brought together human
12. Thus, although Argentina’s Center for Legal and Social Studies (CELS) was one of the key human rights actors pushing for justice measures during the Argentine transition, its international partner, Americas Watch, played a more central role in the emergence of an international-level field of transitional justice, particularly through the efforts of Juan Méndez and Aryeh Neier.
2009 How Transitions Reshaped Human Rights 327
rights activists, philosophers, legal experts, and political scientists from Latin America, Uganda, Haiti, and South Korea in an effort to compare experiences of the pursuit of justice initiatives in varying transitional contexts. Some of the participants had been actors in transitional justice efforts (Malamud-Goti), some would become actors in such efforts (Zalaquett), whereas others were observers with varying degrees of interest in the outcome of any particular national situation.
This conference was not chosen because it represents a founding mo- ment for the field of transitional justice, but because, in the words of its organizer Alice Henkin, it offered an “intellectual framework” that was previously absent for discussing issues that were raised in postwar Germany, Spain, Greece, Argentina, and other places.13 The debates that took place and the participants involved thus give important insight into the conceptual underpinnings—if not the practical and institutional underpinnings—of an emerging field, one that came to be known several years later as “transitional justice.” If human rights activists were developing a new set of practices, how did they—as well as the thinkers, policymakers, and donors with whom they interacted—conceive of those practices and shape them into the conceptual structure for a unique, new field?
b. Where to Start?
Where to start a history of the field of transitional justice is no easy question to answer. One thinks of the Allies’ precedent-setting trials of Nazi war criminals at Nuremberg, or of the human rights policies of Argentinean President Alfonsín after the end of the military junta. But the measures we now associate with transitional justice certainly are nothing new. In Stay the Hand of Vengeance, Gary Bass recounts a history of war crimes tribunals that extends at least 200 years into the past.14 In Closing the Books: Transitional Justice in Historical Perspective, Jon Elster has written about trials and purges more than 2,000 years ago, during political upheavals in ancient Athens.15 So how do we decide where and when to start the story?
Perhaps simple is best; we should start by investigating the invention and acceptance of the term “transitional justice” itself. Interestingly, none of the existing accounts of the emergence of transitional justice explore the appearance of the term. Thus, for Ruti Teitel, the Nuremberg Tribunal is an
13. Interview with Alice Henkin, Director, Justice and Society Program, The Aspen Institute, New York, N.Y. (13 Aug. 2007).
14. gary Jonathan bass, stay the hand of vengeance: the PoLitics of war criMes tribUnaLs (2000).
15. Jon eLster, cLosing the books: transitionaL JUstice in historicaL PersPective (2004).
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important moment in the first “phase” of transitional justice, even though none of the actors involved would have described it as such.16 Nor would those actors necessarily have ascribed the same meanings to what they were doing as Teitel and Elster do.
Here is where the question of methodology is important. An observer such as Elster, for example, treats transitional justice as a perennial problem, a timeless construct whose varieties can be understood and dissected across the ages—from ancient Athens to the present. Whatever meanings these vari- ous practices may have held for the historical actors involved (none of whom had ever heard the phrase “transitional justice”) get swept into a universal, homogeneous conception of transitional justice, whose only meaning is iden- tical to our conventional, twenty-first century understanding of it. This kind of approach, which in historical practice is called “anachronism,” has been eloquently critiqued by Quentin Skinner, among many others.17 In Elster’s defense, he makes no claim to writing a history of transitional justice. The title of his book, which puts transitional justice “in historical perspective,” as well as its contents, suggests otherwise. Those who take a genealogical approach, such as Teitel, fare better with respect to anachronism, but they still fall into the trap of imputing ideas about “transitional justice” to actors who, presumably, were unlikely to have held them, particularly in their discussions of the immediate post-World War II era.
It makes sense when one is writing a conceptual history to begin by examining the invention of a phrase itself, as representative of the emer- gence of a new position, as well as its subsequent acceptance as something distinct and meaningful. Such an approach has the advantage of avoiding anachronism, while providing a less arbitrary starting point.
Following from Skinner, the invention of new terms, or the shift in meaning of old terms, in a political vocabulary are responses to concrete problems faced in political life. Some of these political terms are, moreover, intersubjectively normative. As James Tully puts it, these are “words that not only describe, but, in describing, also evaluate”—according to the context in which they are invoked.18 In a liberal-democratic context, for example, invoking terms such as “democracy,” “dictatorship,” “rational,” “tolerant” implies an evaluation, a particular normative judgment. Calling another country “democratic” or another person “tolerant” is, in this context, a description that expresses approval—which, in turn, helps to legitimate the actions of those who invoke them. Thus, the appearance and apparent ac-
16. Ruti G. Teitel, Transitional Justice Genealogy, 16 harv. hUM. rts. J. 69, 70 (2003).
17. See Quentin Skinner, Meaning and Understanding in the History of Ideas, in Meaning
and context: QUentin skinner and his critics 33–34 (James Tully ed., 1988).
18. James Tully, The Pen is a Mighty Sword: Quentin Skinner’s Analysis of Politics, in Meaning
and context, supra note 17, at 13.
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