Why should amnesties be seen as the very last resort of any political decision to be taken in the transitional process? Which transitional justice mechanism is the most crucial to be imposed first in periods of the transition? What have we learned about transitional justice from the case of Spain after Franco’s death in 1975? Why does one of the reconciliation policies in Rwanda require former perpetrators who participated in Genocide to wash the bones and sculls of those they had killed in 1994?
These questions were answered by Anja Mihr, Associate Professor at the Netherlands Institute of Human Rights, University of Utrecht (Netherlands), who is in her research focusing on transitional justice, reconciliation, human rights and democratization. Her work is mainly focused on transitional justice and reconciliation in Rwanda, Kosovo, Bosnia and Herzegovina, Germany, Chile, Spain and Somaliland.
Anja Mihr received her Ph.D in Political Sciences from the Free University in Berlin in 2001. Mihr has worked for Amnesty International and the German Institute for Human Rights. Starting as an assistant professor with UNESCO Chair in Human Rights at the University of Magdeburg in Germany in 2002, she later became a research director at the Humboldt University of Berlin, carrying out the research project „Teaching Human Rights in Europe“ from 2003–2006.
From 2002–2006 Anja Mihr also served as Chair of Amnesty International Germany. From 2006–2008, Anja was the European Programme Director for the European Master Degree in Human Rights and Democratization at the European Inter-University Center for Human Rights and Democratization (EIUC) in Venice, Italy. In 2008, Anja Mihr was Visiting Professor for Human Rights at Peking University Law School in China and worked for the Raoul Wallenberg Institute of Human Rights and Humanitarian Law.
“Strictly speaking, to apply transitional justice in processes of democratization is not about winners and losers, as such, but about strengthening democratic institutions.”
Is there an existing connection between transitional justice and democratization? That is to say, if transitional justice (TJ) is not fully implemented, will there be a negative impact on the process of democratization and furthermore on consolidation of a newly born democratic regime?
Transitional justice has both positive and negative effects on democratization processes. Positive effects include, for example, when citizens’ claims for transitional and/or criminal justice lead to governments having to react and respond by installing commissions of inquiry or initiating trials against perpetrators, etc. This level of responsiveness is one of the criteria to measure the quality of democracy. The assumption is that the more responsive governments are towards their citizens or victim groups’ needs, the more efficient democratic institutions are. Nevertheless, government responsiveness is only one side of the coin. At the same time, parliamentarian and legislative powers also have to be capable of restricting executive powers.
TJ measures can be indicators of how effectively democracy works, for example when the outcome or goals of these measures increase the civic trust of citizens in democratic institutions and thus strengthen the democratic regime. Governments are required to respond to the needs of people in transitional processes and democratization. If there are victim groups that suffered under previous regimes, they make claims for compensations, or for trial, etc. The government has to react to these claims. By responding to victim groups in this way, they government members experience democratic institutions – often for the first time in their lives. Executive and legislative powers should not suppress victim claims, and thus the government should take action within the framework of human rights’ norms and apply the rule of law. By doing so, civilians, civil society and governments learn about democracy. Human rights norms have an educative impact here.
For example, the government in transition countries can say that victim groups may want trials for every police officer in the country, but the government will conduct trials only for those police officers for which they have sufficient legal evidence to ground a prosecution. It is difficult in the first years after the end of a conflict or authoritarian regime to try and indict all potential perpetrators without even considering the lack of evidence and procedural mechanisms. But trials, whether domestic or international, can demonstrate what perpetrators can be held accountable for. At the same time, the perpetrators need a fair trial and also human rights’ standards have to be applied.
The negative effect of too many TJ mechanisms in too short time can lead to a radical reaction by citizens, old political elites and the dysfunction of new and yet still fragile democratic institutions. Some TJ mechanisms, for example memorial events and truth commissions, can open deep wounds or lead to arbitrary revenge. If names of perpetrators are made public through vetting without a proper indictment or a functioning independent judiciary in place that can uphold equity of rights, alleged perpetrators are without protection and may be subject to acts of vengeance. Family members of victims or victims themselves often take revenge without really knowing what precisely happened and considering to what extent someone had been involved in the previous regime or responsible for atrocities. Nevertheless, it is important to have a mix of TJ mechanisms and to respect the fact that some mechanisms might apply earlier than others, depending on the type of conflict, the severity of injustice and atrocities and how long oppression or war was going on.
Thus, sequencing and timing is important, too. It is also critical during this transition process, that the rule of law is applied and international human rights standards and law respected. Strictly speaking, to apply TJ in processes of democratization is not about winners and losers, as such, but about strengthening democratic institutions.
“There is also an argument, particularly often visible in Eastern Europe, that when people are taken to the court, old wounds will be opened. This is probably the basic argument you have against TJ.”
There are many core dimensions within transitional justice, e.g. criminal prosecutions, institutional reforms, restitution for the victims, truth commissions, etc. Which one would you say is the most crucial to impose first in periods of the transition? Otherwise, what far reaching negative consequences will result?
This is also connected to the question of when TJ can do harm to the democratization processes and hamper democratic institution building instead of supporting it. We should not expect countries in transition periods to imply all the TJ tools and mechanisms at once. For instance, maybe it is more adequate to have a trial against the former government, two, three or even ten years after the transition. I think what is crucial is that interim or elected governments acknowledge immediately after the regime change that atrocities and human rights abuses have happened in the past and that TJ measures will be applied to bring those responsible to justice at a later, more opportune time.
Governments and political elites have to be sensitive and responsive to the different needs and claims of their citizens. Not everybody in a society wants immediate trials. You need some time, and in these cases it can take a couple of years, even ten or twenty years, to really identify what kind of atrocities have happened. Taking the example of post WWII Germany, we have learned that there is no strict time limit on when and what TJ measures to apply. The important issue is that if there is a claim or a need to confront the past, democratic institutions ought to respond adequately in compliance with human rights and democratic standards. They can however install and initiate different mechanisms, but the important factor is, that they do not shy away from confronting the past.
In general, I would be careful with mass trials against the whole bureaucratic elite of the former regime. Needless to say that terror regimes and governments including dictators should be expelled immediately and be trialed – but here we talk about a rather small number of people – not necessarily the whole technocratic elite. It is better not to impose trials immediately after transition but as soon as possible. Governments should not wait twenty years. History commissions or lustration procedures can be an interim solution. They can investigate the alleged cases according to international human rights standards and the domestic law that was in place at the time the abuses, crimes against humanity or atrocities happened. In some cases it can take some years to have enough facts on the table before you can launch the trial.
There is also an argument, particularly often visible in Eastern Europe, that when people are taken to court, old wounds will be opened. This is probably the basic argument you have against TJ. Any memorial, any history commission or any trial can open old wounds but you need to reconcile divided society in order to go ahead with democracy. However, a government has to balance these two very important interests; on the one hand, the victims that claim truth and justice and, on the other hand, the desire to reconcile, to reach peace and stability, which might be jeopardized with TJ measures. People also need truth and justice to demystify the previous regime. At the same time one has to be careful with commencing trials. I would say that trials, truth commissions and history commissions can contribute to democratization, but the mix of measures and the timing will frame their success.
We can look at the specific case of Spain after Franco’s death in 1975, for which it took almost two decades to initiate transitional mechanisms and begin dealing with former regime.
This is a very good example for the need of TJ. From the Spanish case we learn that the request and the need for TJ never ends, regardless of how far back in the past the conflict is. In Spain, the younger generation wanted to know what happened in the past, to their grandparents and older generations. They wanted to know their own identity, the identity of their parents and their grandparents.
In the case of Spain it was just a matter of time before there would be a generation going to the streets and saying: “I want to know where the dead body of my grandfather is buried.” To know who did it, that is the basic desire. Often these people, who take up victims’ claims, do not necessarily want to bring perpetrators in front of the court, they do not necessarily need money, but they want to know what really happened because it is part of their family history and identity and, thus, the collective narrative. But at the end of the day, the way governments respond to these claims is also in a way a ‘stress test’ how a country and its authorities deal with perpetrators in general – regardless of whether they committed crimes in the past or in the present. By letting them go without punishment, even if the crime happened forty of fifty years ago, the government or the judiciary of a country is indirectly saying that everybody can kill at any time without being charged. The new democratic regime, however, needs civic trust and engagement; otherwise, the democratic institutions will not function effectively. One way to prove it can function efficiently is, whether the judiciary is capable of charging perpetrators, regardless of when the crime happened. Nowadays we know this will happen, but in the 1980s and 1990s, when many countries in Latin America and in Eastern Europe were in democratic transition, the effect that TJ could have on the regime was not so evident. Many were saying that it was not necessary but now we know that sooner or later people seek truth, justice, fairness and overall equity – and this is where TJ can make a difference.
Thus we can say that transitional justice is a necessary pre-condition for development of trust within civil society and that sooner or later it will be applied in every country.
Absolutely. Sooner or later there will be claims for TJ of some sort. We know also from societies where even hundreds of years after the massacres and crimes happened, the family members of those who were murdered, were saying that they wanted to have a memorial as a way of acknowledging their ancestors. Thus, transitional justice is important to increase and manifest the civic trust of the society in a political regime. Memorials, historical commissions, trials, etc – the list of mechanisms and instruments is long. It is important for democratic elites to respond to the needs of the society. But you also have to respond to the needs of the perpetrators. At the end of a day, the accused and alleged perpetrators deserve to have fair trials, regardless of whether they are innocent or guilty. To the extent to which a government respects this, also shows how strong its democratic institutions are.
“We have to be really careful with amnesties. They should by no means lead to a culture of impunity. We have to see them as a very last resort of any political decision to be taken in the transitional process.”
And what about the role of amnesties? From your experiences in many post-conflict countries, including Somaliland and Rwanda, do you consider amnesties as an adequate transitional mechanism within a process of regime transition?
We have to be really careful with amnesties. They should by no means lead to a culture of impunity. We have to see them as a very last resort of any political decision to be taken in the transitional process. Amnesties should not be the first measure to deal with the past, especially before looking at the cases and people involved. But it can be applied to a very small group of former elites or technocrats, which the new regime needs in order to smoothly transition to democracy. For instance lawyers, administrators, doctors, engineers and the military that served under the previous regime may have the institutional and technical knowledge that a state needs in order to build a democratic society.
If a new government’s administration needs to organise a functioning state, and therefore issue amnesties, then those former elites and technocrats are free from trial or investigation for a number of years. This can actually help to build up the new democratic institutions because then these people contribute to the new regime, instead of mobilizing their old networks to destabilize the new democratic institutions through corruption, blackmailing or coup d’états. However, this has to also be assessed on a case by case basis and depending on the kind of conflict and the availability of new and old elites in the country. The regime certainly needs the technical skills of lawyers, for instance, but the government should not issue blanket amnesties or forget what each individual has been responsible for. These, sort of semi-amnesties and playing on time, show that you have many different forms of amnesties. In the end of the day, amnesties can be considered a useful tool for a determined time. Today we also know that even blanket amnesties such as those issued in Spain or Argentina can be subject to change and can be abolished.
“There is no regime in this world going through transition within the last hundred years, which would have enough people to replace the former elites and technocrats over night.”
Certain authors within democratization theory defend an argument that for every regime transition it is actually crucial to have technocrats overlapping from the former regime to the new regime, in order to keep up the functioning of its basic structure.
Yes, it is very important in transition periods to transfer some former technocrats to the new regime. A functioning state needs functioning institutions and institutional memory. But for the victims of the former regime, to see these people in their old positions, it is sometimes hard to understand and difficult to deal with emotionally. This is particularly the case in Eastern Europe where a lot of people were risking their lives working underground, like the Samisdad movement in Poland or the Charta 77 in Czechoslovakia or those protesting on the streets in 1989 in East Germany. For them, it is sometimes very difficult to hear that many of the old communist apparatchiks are still in powerful and administrative positions, particularly at the local level in smaller towns and villages where there are no alternatives and enough technocratic elites to replace them.
The problem is often, that to educate lawyers, judges, doctors or administrators can not be done over night and, in transition periods, societies often have to live and work with old apparatchiks for much longer than they wish to do so. From a personal and emotional point of view, the anger about this is understandable. But on the other hand, you need a functioning state. You cannot have anarchy. If you have enough people to replace the old elites, then this is better. There is no regime in this world which has undergone transition within the last hundred years, which would have had enough people to replace the former elites and technocrats over night. The only exception we might consider is East Germany after 1990, because there were enough people from Western Germany to replace the communists-elites at many state and institutional levels. But apart from that, it rarely applies. How the new government decides who has to leave and who can stay plays a role here. Governments or parliaments can for example acknowledge responsibilities of people or groups of technocrats for crimes, but at the same time continue to employ them under certain conditions – for example members of the former elite cannot hold a public political office, etc. Governments should give a clear signal to victim groups that the crimes and injustice they suffered from these people are not forgotten and are well acknowledged. Trials might be instituted at a later stage. What counts here is building democratic institutions to increase citizen participation and thus trust in those democratic institutions.
“…it would have been definitely better for the transitional and democratization process for Libya if the dictator had been alive, indicted and received a fair and open trial.”
Muamar Ghadaffi was killed in Libya at the beginning of November. Can we see this as a very difficult situation for the National Transitional Council to deal with, in that they missed the opportunity to symbolically try him and help themselves to build a legitimate new regime as such?
Ghadaffi would have been more useful to the transitional council if he would have been alive and put to trial. This way, the new regime could not only shed light on the abusive regime of the Ghadaffi clan but also demystify it. At the same time the new government can highlight better why and how it will now install different (democratic) institutions that will run the country in a more equal, fair and efficient way than the old regime.
Alive, Ghadaffi would have helped to identify and determine all those atrocities and human rights violations he was responsible for because international law and national law works in such a way that you cannot try people that are no longer alive. Maybe it will change in the future, but for now that is the way it is. In short, it would have been definitely better for the transitional and democratization process for Libya if the dictator had been alive, indicted and received a fair and open trial.
If we look at Ghadaffi’s death, what are the biggest difficulties for National Transitional Council to deal with at the moment?
We assume that the more radical and violent revolutions that take place, the less likely they will succeed in bringing democracy about. Thus, Libya is in a difficult position because it underwent a very violent revolution and civil war. People sacrificed their lives, every family in the country counts a personal loss and, on such an emotional basis, it is hard to install rational and technical democratic reforms. To build a constitution now, Libya has not only to please those who have experienced losses over the last months but also future generations. At the same time it ought to respect international human rights standards and establish a rule of law. But often we see that after such a violent conflict, the winners want to get it all and the respect for those who lost the fight is rather low.
According to some theorists, this is a very difficult start. But what is good for Libya is that you have a fairly well educated middle class, the literacy rate is high and it is an economically stable country. Members of the previous regime’s elites know exactly how the society and institutions work and can bring expertise and institutional knowledge. This can fuel democratic reforms, but not guarantee them. If the new interim-government makes their full commitment to democracy, not only thinking about themselves, then democracy may succeed.
How should we measure the success of transitional justice? In a case of Hybrid Regimes in post-conflict societies such as Rwanda, is the number of resolved trials or cases won an indication of success? Or should we focus more on the legitimacy of a new regime?
In terms of transitional justice and democracy, Rwanda is a failure. Rwanda is by no means a strong or effective democracy. Opposition is suppressed and to ask questions about the role of Kagames troops during the 1994 genocide can result in penalties. Human rights standards are not applied. Political and freedom rights are a farce and not respected. People are intimidated and far too many get political trials. Kosovo is not much better. In many of these societies the old idea of the “winner takes it all,” dominates, which is very dangerous to democracy because democracy shows its strength in the way it treats minorities, vulnerable groups and those opposing its elites by democratic means. In terms of Rwanda, it was a top-down TJ approach. Official authorities or the government never really adjusted it to the peoples’ needs. They have re-educational camps, called reconciliation camps, but people there are forced to think and believe differently. They are not necessarily convinced.
Plus, what is even more crucial, is that the Kagame government has not lost an election since 1994, because of election fraud and manipulations. This is a very important indicator. If the same government, 10 years after the transition, is still in power, it is alarming. And those countries very often argue that the opposition groups are not ready for taking over the government, a typical paternalistic and anti-democratic view of the situation. The current government does everything to disorganise, destabilise and threaten the opposition so that they cannot really build political and organisational capacities among them.
The opposition leaders often cannot organise in public or express their views…the list of human rights abuses towards them is long. And there is no willingness to give up power, because they are still in the mindset of times of warfare with the former regime. Similarly, Kosovo had a very bad start after 1999. For 10 years the State was so busy fighting for independence from Serbia, that it ‘forgot’ to install proper democratic institutions, respect the rule of law and to issue fair trials to perpetrators, which according to the government could only be Serbs, which of course is wrong. Perpetrators and war criminals have been found on all sides of the conflict. After independence in 2009, the government performed very low in democratic terms, the level of corruption is rather high and there are reports about unfair trials. Nevertheless, the citizens of these countries deserve a chance.
When we were talking earlier about reconciliation, you mentioned a very specific way of commemorating victims in post-conflict societies, especially in Rwanda. Could you illustrate in this case what the commemoration of victims looked like?
Every country commemorates victims of mass crimes in a different way. In Rwanda, one of the policies was to oblige former perpetrators that actively participated in genocide, and thus murders mainly belonging to “category four,” to wash the bones and sculls of those they had killed in 1994. They do this once a year at the Genocide Commemoration Day in April. Generally speaking, many of these people are from the region where they committed the crimes. Some of those sculls and bones were buried, if family members wanted it, but the majority of the remains of those killed stands there for the rest of year, often exposed to the public, as a warning memorial for future generations.
In one of the last essays dealing with the Arab spring, Timothy Garton Ash pointed out our inability to predict things such as revolutions in North Africa, explicitly mentioning, “no one was able to predict it, but everyone can explain it right now.” This quote points to an important dilemma which every social science scholar is facing, and sooner or later, has to answer for himself. Would you say, in the end, social scientists should be driven by predictions; or should we be satisfied only with providing the most precise empirical explanations of contemporary events which took place?
Maybe I belong to a new generation of political scientists. Timothy Garton Ash belongs to my teachers’ generation, who were indeed more careful with predictions. They had much less empirical evidence 20 or 30 years ago about patterns for democratic change in societies. Within the last ten years huge empirical data and evidence across the world on democracies and democratization processes has been generated and it allows us to make more careful predictions. We become more and more precise in analysing the patterns which trigger societal change after periods of suppression, crimes and inequality and at the same time what keeps societies from protesting against governments.
In a nutshell, we can say that if governments do not respect human rights on a large scale over generations, if they permanently exclude minorities from decision making processes, if they hamper the development of younger generations and do not provide the grounds for equal distribution of resources or access to professional development, education, health, etc.; than tensions will rise to such an extent that people will rebel against their regimes one day.
Some analysts predicted the Arab spring to happen within this decade based on the sheer number of young ‘angry man” in these regions that have no chance for social progress in these countries. This is exactly what happened over the last year. Today, we have data that gives us indicators and thus we can predict at least tendencies, and we are getting better at it. I personally believe that we will be able to make more precise predictions of societal and political trends in the future by analysing the present and the past. The same is true for measuring the link between TJ and democracy. Today, when we talk about consolidation periods in democracy, we know it should take place within five to ten years after the end of the previous anti-democratic regime. Maybe we can even be more precise on this too, one day.
Thank you very much for the interview.
Petr Pribyla is a student of European Master's Degree in Human Rights and Democratisation in Venice and an intern at the Czech Centre of Human Rights and Democratization of Masaryk University.