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Transitional Justice: The Quest for Theory to Inform Policy
Author(s): David P. Forsythe, Tricia D. Olsen, Leigh A. Payne, Andrew G. Reiter, Carla
De Ycaza, William Schabas and Jorge Heine
Source: International Studies Review , September 2011, Vol. 13, No. 3 (September 2011),
pp. 554-578
Published by: Wiley on behalf of The International Studies Association
Stable URL: https://www.jstor.org/stable/23016738
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International Studies Review (2011) 13, 554-578
Forum : Transitional Justice: The Quest for

Theory to Inform Policy
David P. Forsythe1
Department of Political Science, University of Nebraska-Lincoln
Transitional justice (or TJ) emerged as a subject of policy debate and academic
study by the late 1980s and early 1990s due to two developments (see Teitel
2009; Arthur 2009; Bell 2009; Roht-Arriaza and Mariezcurrena 2006). First, there
was the end of brutal authoritarian regimes in Latin America and various
responses in that region. Second, there was the end of repressive European com
munism and the political space subsequently opened up for various national and
international policies.
A very lively debate thus emerged about criminal prosecution, truth or fact
finding commissions (TCs), apologies and reparations, amnesties and other
forms of impunity involved in "just moving on," memorials, lustration or barring
human rights violators from holding public office, and more. Academic asser
tions, and eventually careful studies, followed. The central question in both
political and academic circles was: What to do after atrocities or gross viola
tions of human rights, with one central concern being how to prevent their
reoccurrence.
To track developments, there is now a journal, The Int

sitional Justice. Various Web sites keep us update and p
Impunity Always," "Crimes of War Project," "Inter
"International Criminal Law Bureau."
It is not easy to come to clear conclusions about preferable policies in varying
contexts (see especially Minow 1998; also Roht-Arriaza and Mariezcurrena ibid).
The latter break down the subject into policy options—for example, trials versu
TCs—and level of action—for example, national versus international. A shor
forum such as this one can hardly expect to do more than scratch the surface o
a very large and complex subject. Yet one can: give a brief introduction tha
hopefully stimulates, look at developments in two important regions (Africa an
Latin America), and discuss TJ in the United States after torture and other gross
violations of human rights (and humanitarian law). It is after all the powerful
and supposedly liberal United States that tends to make the weather on thes
matters.
The Past: Criminal Justice

After World War II, the Nuremberg and Tokyo proceedings advanced t
of criminal prosecution for some officials who had authorized policies
major war crimes, crimes against humanity, and aggression. Important
1This article is a condensed and somewhat different version of an essay that appeared in Internat
Review, Spring 2011. For helpful comments on this and earlier drafts, the author would like to than
of this forum, as well as the participants in the Transitional Justice Study Group of the program on
and Humanitarian Affairs at the University of Nebraska-Lincoln.
doi: 10.1111/j. 146&-2486.2011.01016.x

©2011 International Studies Association

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The Forum 555
tions were laid despite highly imperfect proceedings, with Tokyo manifesting as
much victor's justice but even less due process than Nuremberg. But highly
flawed legal justice was to lead to some progressive—and in some cases contro
versial—steps over time.
Even as some German and Japanese officials were held individually responsible
for mainly war crimes, others of national importance were given amnesty or
impunity. From the beginning of the modern era of international criminal jus
tice, political expediency made its presence felt. According to Teitel (ibid), what
makes TJ different from "normal" justice is the impact of disparate political con
texts. If one wants to speak truth to power, it seems power affects how (and
whether) that truth is spoken.
While the antecedent conditions vary (international war, civil war, tensions
within existing states in situations short of war, etc.), a primary public policy con
cern is prevention of repetition by ensuring rights protective polities. Other
objectives are providing solace to victims or relatives, establishing a truthful
record, providing reparations, refining legal concepts, giving special attention to
the most vulnerable like women and children.
The Cold War was at least partially responsible for blocking a centralized in
national follow-on to Nuremberg and Tokyo until the 1990s when a return to
centrally endorsed international criminal justice occurred. Colonial powers lik
France were not keen on international criminal justice either, given their polici
of torture and other brutalities in places like Algeria (Arthur ibid). The renai
sance of internationally organized criminal prosecution was facilitated by two f
tors: (i) improved East-West relations and the weakening, soon fatal, of t
Soviet Union; and (ii) the desire of the West, led by the Clinton Administratio
to appear to be concerned about atrocities in the Balkans and Rwanda, wh
seeking to avoid decisive military intervention—by putting Western military p
sonnel in harm's way to protect the rights of others. In the greater politi
space for international criminal justice opened up by the end of the Cold War
the UN Security Council, renewed interest in international criminal courts (IC
in the 1990s occurred partially for the wrong reasons.
Yet, a social law of unintended consequences kicked in. Certain actors pushed
the idea of individual responsibility via criminal prosecution much further an
in ways that important military powers were to find objectionable. While the
ICTY and ICTR were created in 1993 and 1994, and other developments f
lowed pertaining to internationally approved criminal justice related to Sierra
Leone, Liberia, East Timor, Kosovo, and Cambodia, the creation of the ICC dur
ing 1998-2000 occurred in ways that the United States, Russia, China, India, and
Israel have yet to fully accept. Formal endorsement of human rights and humani
tarian law in the abstract is one thing. Accepting an international court to look
over the shoulder of important military powers after they exercise force is
another—at least outside of Europe.
There is no evidence that those responsible for the seminal creation of the
ICTY and ICTR, like President Clinton, had a firm grasp of what Nuremberg
and Tokyo had and had not accomplished. Even among academic champions of
criminal justice, some of whom view prosecution as necessary for both peace and
justice, there is a need for more scholarship on this question. We still lack clear
answers as to why West Germany, and now Germany, has compiled a much bet
ter record in coming to terms with the atrocities of the past than Japan.
One might hypothesize that accepting responsibility for past atrocities in the
two countries was mainly affected not so much by the quality of internationally
sanctioned criminal proceedings but by the presence, in the German case, of a
Western-based transnational advocacy network determined to remember the
holocaust. In Japan, there is no powerful network focused on Chinese and
Korean victims and with access to Western policy-making circles. More than a

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556 Transitional Justice
half-century after Nuremberg and Tokyo, there is still a need for empirical study
of what we know about the impact of those judicial proceedings. Why is it that
chauvinistic right wing nationalism has been discredited more in Germany than
in Japan? Does the nature of apres guerre criminal justice have anything to do
with that?
According to Peter Maguire (2001), the US approach to the Nuremberg trials
was a matter of "strategic legalism"—that is, law and judicial process put at the
service of other, political objectives. First, there was the attempt to use the main
International Military Tribunal (IMT) at Nuremberg to re-educate Germany
toward liberal values. But, because many if not most Germans rejected the IMT
as victor's justice, the United States backed away from strongly supporting war
crimes prosecutions. To get Konrad Adenauer elected and Germany safely
ensconced in the Western alliance, Washington agreed to quiedy release most of
those convicted and avoid new prosecutions. The Americans decided to jettison
criminal justice as an impediment to larger political objectives.
This should dampen our expectations about, for example, using the ICTY to
re-orient Serb political culture in a more liberal, less paranoid direction. Imme
diately after the passions of war, it may be asking too much to expect judicial
proceedings, at least those run by outsiders who prosecute those who have lost
power, to change the mindset of the generation that fought and suffered. This is
relevant to Rwanda today and the ICTR. What transpires after that generation
passes is an interesting question. Perhaps in West Germany, after the occupation
was over and the Federal Republic of Germany (FRG) up and running, the
Germans themselves pursued criminal justice for Nazi atrocities, and this—
combined with the transnational advocacy network trying to ensure "never
again"—accounts for the superior German rejection of past atrocities compared
to Japan. Until we have further research on Germany and Japan, we will not
know.
The Past: Truth Commissions and Combinations of Factors
Toward the end of the Cold War, one finds highly relevant developments in
Latin America involving not just the decline of brutal national security states, but
also experimentation with trying to come to terms with the past gross violations
via, inter alia, various forms of TCs and attempts at national prosecutions. This
record is addressed in the follow-on essay in this forum by Olsen, et al. Earlier it
was surveyed by experts in comparative politics such as O'Donnell and Schmitter
(1986) without using the notion of TJ (see Schmitter, 2010).
Olsen et al (2010) argue that TJ enhances the likelihood of improvements in
democracy and human rights in the region. Trials with amnesties, with or with
out TCs, advance the protection of human rights over time. Of continuing rele
vance is the argument that TCs alone have a negative impact on human rights
and democracy (Wiebelhaus-Brahm 2009).
The end of the Cold War facilitated TJ measures related to Africa, as the UN
Security Council mandated various forms of criminal courts for Rwanda and
Sierra Leone, the latter entailing a special chamber for Charles Taylor out of
Liberia. TCs, most prominently in South Africa, various types of courts, and four
African cases in the ICC all addressed the question of how best to come to terms
with a brutal and conflictual past in ways that contributed to human rights in
the present and future. A key issue is prosecutorial discretion: when to prosecute
and when to defer to local measures of healing or TCs providing immunity.
As for the impact of criminal proceedings, in Africa as elsewhere, as de Yacza
and Schabas outline in their piece in this forum, it is possible that they have
been helpful in developing the relevant law and have taken brutal figures off the
streets and out of politics, while at the same time having miniscule impact on

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The Forum 557
national and regional peace and reconciliation. It is also possible that

light of such posited judicial achievements and limitations, the sizable am
of money spent on the courts might have been better spent on equitable
opment (See Cobban 2007). As for TCs, if we focus just on the T&RC in
Africa, it is possible that its successes have been overrated and its defects
studied, but that in the last analysis, it made a contribution to peaceful d
cratic transition (see Chapman et al. 2008).
An important development stems from the facts of 9/11 being overlaid o
end of the Cold War. The 2001 al-Qaida attacks on the US homeland, a
US response under the George W. Bush administration involving at times t
and cruel, inhuman, and degrading detention and interrogation (see, Gree
and Dratel 2005; Mayer 2008; Phiffner 2010, and Forsythe 2011), accentua
point not fully appreciated before. Questions about the appropriatene
impact of TJ measures could at times pertain to great as well as lesser po
even including consolidated liberal democracies. Jorge Heine takes up the
tion of possible TJ in the United States after the Bush Administration, l
Vice President Cheney, decided to go to "the dark side." Such inquirie
make clear that, whatever its origins, TJ is not now limited to "emergin
"transitional" democracies.
As usual, power mattered. China after Tiananmen Square and Russia aft
Chechnya seemed able to avoid any form of revisiting brutal policies to ensur
"never again." But consolidated liberal democracies, precisely because they wer
such, could not push matters under the rug so easily. Or maybe not. No Frenc
official ever resigned or was prosecuted for torture in Algeria. The same was t
for British officials who authorized or tolerated abusive interrogation or politi
killings in Northern Ireland. And when the UN Goldstone Commission in 2009
reported war crimes by both Israel and Palestinian parties in the armed confl
in Gaza, a concerted effort was made by both Israel and the United States
avoid a transparent and decisive response.
At the time of writing, the subject of TJ in Washington for, arguably, ove
reaction to 9/11 seems almost a dead letter. But particularly Spain after
Franco thought TJ was a dead letter too, as Spain moved into its consolida
democracy backstopped by the Council of Europe and the European Uni
without special TJ measures. But as Heine notes, Spain circa 2010 fac
renewed debate about the wisdom of revisiting the past, and in particular the
atrocities committed by both sides during 1936-1939. Brazil, too, continues to
be faced with questions about TJ, long after its period of brutal milita
repression.
Future Research
Different researchers can legitimately be interested in different TJ aspects

goals: establishing the truth, punishing for heinous crimes, ensuring con
dated liberal democracy, developing proper and useful law, improving the liv
of victims and/or their loved ones—both materially and morally, promo
national and international reconciliation or peace and stability, emphasizing
special role of women and/or children. Some of these goals seem more am
ble to scholarly analysis than others. For example, bringing a sense of closur
victims or their relatives seems particularly variable.
There has been a cascade of efforts with regard to both retributive justice
trials of various sorts (Sikkink 2009) and restorative justice via non-penal com
sions of various sorts (Hayner 2001; van der Mehwer 2008; Phelps 2009).
have become so much a part of widespread political discourse that the ide
Truth Commissions has spread deep within subnational communities, w
Greensboro, North Carolina (NC) employing a TC to deal with the racism of

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past (Magarrell and Wesley 2010). One rather suspects that apologies with or
without reparations have also increased (see Howard and Gibney 2007). Lustra
tion/vetting continues. Amnesties seem to be a continuing fact of life (Freeman
2010). Yet there is enough material to fill a book on prosecuting heads of state
(Lutz and Reiger 2009).
Most likely, findings will be complicated. National trials in Argentina and else
where may have played important roles in protecting human rights in
multifaceted ways. National trials in Poland (re: Jaruzelski) and in Iraq (re: Sad
dam) bordered on farce. The TC in Sierra Leone may have been seen as irrele
vant to daily life of the general population, while the one in South Africa may
have made a contribution to all-race liberal democracy. While data-based studies
may give us a good indication of probabilities, qualitative studies are likely to
flesh out the details and improve our understanding of differing situations.
Whether one speaks of Latin America in the 1980s and 1990s or Africa from
1994, and/or indeed the post-Cold War transitional measures in Europe and
Asia, it is no small task to be scientifically precise about the importance of the
various measures—including not just courts and commissions but also apologies,
reparations, lustration/vetting, and memorials. Much study of TJ has moved in
this empirical direction. Whereas some years ago assertions by those with legal
and philosophical orientations about the desirability of this or that measure in
pursuit of "never again" were common, now there is a clear, broad, and interdis
ciplinary effort to test those assertions with scientific, empirical, and carefully
reasoned findings (see van der Merwe, et al. ibid).
Conclusion
Various polities and international organizations continue to face demands fo

various forms of TJ. More and more researchers are engaged in a wide ranging
search for reasoned answers based on scholarship. The history of TJ is not over
nor ways of studying it. Across the diverse and complicated settings, will it be
possible to establish clear trends about impact? It is a stimulating and worthwhil
effort.
Transitional Justice in Latin America

Tricia D. Olsen, Leigh A. Payne and Andrew G. Reiter
Department of Business Ethics and Legal Studies, University of Denver; Department of
Sociology and Latin American Studies, University of Oxford; and Department of Politics,
Mount Holyoke College
Latin America has become the undisputed global leader in transitional justice
and a model for efforts around the world. This is due in part to its position at
the forefront of the "third wave" of democratization and its relatively long
experience and practice in developing mechanisms to deal with past authoritar
ian state violence. Latin America's leadership in transitional justice also results
from its many innovations. These include restorative justice processes, particu
larly Truth Commissions, and retributive justice processes, or prosecuting
perpetrators of past authoritarian regime atrocities. A third area of innovation
is the role that Latin America has played in international transitional justice
developments. In this review, we first summarize the contributions Latin
America has made to transitional justice. We then examine how scholars have
evaluated the region's transitional justice processes and their effect on political

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goals. We conclude with reflections on the direction of future transitional

justice research in the region.
Transitional Justice Innovations

Latin America arguably invented Truth Commissions, with Argentina's CONA
DEP (National Commission on the Disappearance of Persons).2 Subsequent
Truth Commissions modeled some of their work on the Argentine process,
and even adopted its report's title: Never Again. From this early innovation,
Truth Commissions flourished throughout the region adding novel approaches
and models. Guatemala and El Salvador, for example, incorporated gender
related violence into investigations, and Guatemala and Peru added ethnic vio
lence. El Salvador's commission named perpetrators and initiated a hybrid pro
cess in which international commissioners joined the domestic process.
Innovations continue with Colombia adding a Truth Commission-like process,
the Historical Memory Group of the National Commission for Reparations and
Reconciliation, in the midst of armed conflict. The Justice and Peace Law in
Colombia also allows demobilizing paramilitary forces to confess to crimes they
committed and pay reparations to their victims in exchange for reduced prison
sentences.
Restorative justice in the region has included other inno

including the development of lustration and vetting processe
ated with Eastern Europe. In Argentina, informal impugnacio
civilians to challenge government promotion and staffing pr
represents the only case in the region in which the military
ian panel with the power to fire its members. Extensive r
have complemented other transitional justice mechanisms
Brazil and Uruguay, however, these processes may have i
erode amnesty laws.
Memory and memorialization of the authoritarian past h
the region. One of the most innovative approaches to memor
caust era focuses on a social movement approach to the "l
(Jelin 2007). In addition, the impact of monuments, days of
curriculum and textbook reform, and other social process
region's authoritarian past has been substantial (Coleccio'n memoria
A recent study also highlights the commercial aspects of the
atrocity in Latin America (Bilbija and Payne 2010).
Latin America's retributive processes have also broken n
tina's democratic government, for example, used Truth Co
in a landmark process of trying, convicting, and imprisonin
military junta. Prosecuting former heads of state advanced f
tiative. Former Chilean dictator General Augusto Pinochet
under the concept of universal jurisdiction, faced crimina
2009, former presidents in Peru (Alberto Fujimori) and U
Bordaberry) were tried and convicted. "Delayed justice" ef
and Chile further advanced retributive processes by reversin
ing amnesty laws and prosecuting perpetrators many years a
transitions.
The proliferation of human rights trials in the region engendered the notion
of a "justice cascade" (Lutz and Sikkink 2001; Sikkink and Walling 2007). The
2While several minor commissions were used in the 1970s (e.g. Uganda 1974), attention to truth commissions
around the world occurred in the aftermath of efforts in Argentina, Guatemala, El Salvador, and Chile. Indeed, the
now-famous South African Truth and Reconciliation Commission drew from those prior Latin American
experiences.

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Latin American experience suggests that new democracies face domestic and
international pressure to respond to past violence with retributive or restorative
justice processes, rather than amnesty, for past abuses. The Inter-American Court
of Human Rights has made landmark decisions that reinforce this notion, under
mining the Honduran and Peruvian amnesty laws in the Velasquez Rodriguez
and Barrios Altos cases. The latter ruling contributed to the process by which
Argentina revoked its amnesty law. In 2000, Chilean courts found loopholes in
the amnesty law to bring perpetrators to justice. Uruguay reinterpreted the "law
of expiration" to provide the president discretion to prosecute certain human
rights cases.
The region's extensive experience and innovation in retributive and restorative
justice processes provides insights into transitional justice around the world.
Indeed, derived from the Latin American processes, a set of theoretical
approaches has attempted to explain transitional justice's adoption and success
in achieving its goals.
Transitional Justice Adoption

The adoption of transitional justice mechanisms in the region occurred at the
end of the authoritarian era of the 1970s and 1980s. The region's authoritarian
regimes shared Cold War and national security doctrines and used military
repression to eliminate "subversion," but tactics and outcomes varied across the
region. Clandestine detention, torture, death, and disappearances characterized
Brazil and the Southern Cone while scorched earth and rural massacres typify
the Central American and Andean regions' practices. Argentina's dead and dis
appeared number between 9,000 and 30,000 while estimates in the more popu
lous Brazil are at 400. Uruguay's authoritarian regime detained and tortured a
disproportionately high number of individuals, but the number of dead and dis
appeared is relatively low. The "ethnocide" in Guatemala, in contrast, generated
200,000 primarily indigenous and rural victims of the military and paramilitary
forces. The Peruvian military, in contrast, produced lower levels of violence than
the Maoist-oriented Shining Path guerrilla group.
Scholars have used Latin America's variation to generate hypotheses about the
characteristics of authoritarian regimes that explain transitional justice adoption.
Some claim, for example, that long, institutionalized authoritarian regimes tend
to avoid accountability in contrast to short-term, divided authoritarian regimes
(Barahona de Brito et al. 2001). Brazil's two-decade-long military dictatorship
that initiated and controlled the transition process provides an illustration. Its
amnesty law remains intact thirty years after its adoption and despite the erosion
of similar laws by Brazil's neighbors and challenges to such laws by international
governmental and non-governmental organizations. Because other countries in
the region with long-standing dictatorships, such as Chile and Paraguay, have
adopted transitional justice mechanisms, scholars have searched for other expla
nations. Time since the repression, rather than the length of the regime, may
prove more effective in explaining transitional justice adoption. Scholars con
tend that the urgency and demand to hold individuals accountable for past acts
may fade with time (Nino 1996).
The variation in the level of repression provides an alternative explanation.
The relatively low level of repression in Brazil might shield it from the relatively
high demand for justice in Argentina (Pion-Berlin 1993). Scholars suggest that
high levels of repression create pressure for accountability by facilitating domes
tic alliances among victim, survivor, and human rights groups and international
linkages with international human rights governmental and non-governmental
organizations. The more recent the repression, the more likely living and mobi
lized victims and survivors will press for justice. Fewer victims may reduce the

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strength of domestic and international alliances and reduce the pressure

new democratic government to hold perpetrators accountable. This is not
the case. In Bolivia, former president General Luis Garcia Meza and ot
mer high-ranking officials were tried after a military regime in which le
200 people were disappeared.
Regional variation has also allowed scholars to test contending expla
regarding characteristics of the transition (Pion-Berlin ibid). In this expl
Argentina's trial of the generals resulted from the regime's collapse. The
lands/Malvinas War debacle undermined a regime already facing a legitim
sis due to severe economic problems and international condemnation for
human rights violations. Similarly, the collapse of the authoritarian regi
Bolivia, due to international pressure for human rights violations and dr
ficking, may explain the successful prosecution of former dictator M
abrupt resignation of Peruvian dictator Alberto Fujimori following corru
investigations also paved the way for his eventual prosecution.
Negotiated transitions, on the other hand, allow former authoritarian ac
control aspects of the new democratic regime, particularly transitional ju
The most obvious example is Chile in which General Augusto Pinochet ret
formal institutional control over the democratic process through his Sup
Court appointments and the status he retained as Commander-in-Chief an
ator-for-Life. Institutional as well as popular support limited the impact v
survivors, and human rights groups had on prosecuting perpetrators in th
years of the transition. It did not prevent, however, two official Truth C
sions from investigating the dictatorship's atrocities.
Scholars have also examined the role that prior histories of democra
legal systems play in shaping transitional justice adoption (Barahona d
et al. ibid). Efforts to prosecute former heads of state have tended to occ
countries with stronger histories of democracy prior to the authoritarian
(for example, Chile, Peru, and Uruguay) rather than the historically
democracies of Central America. International and domestic social movement
pressure to adopt justice norms could also explain the widespread practic
transitional justice in Latin America. Yet these approaches fail to explain
amnesties have persisted in Brazil, Uruguay, and elsewhere.
Our research of all post-transition democracies demonstrates that no singl
factor affects the likelihood of all possible transitional justice mechan
choices. Consistent with most of the Latin American cases, however, we find
that trials are more likely following regime collapse or in countries with a his
tory of democracy. In those countries with transitions that occur long after the
height of abuses, on the other hand, Truth Commissions are more likely.
Amnesties are most likely in cases with the highest levels of abuses, but only
when those abuses occurred many years before the transition. Democratic
governments rarely amnesty recent abuses. Consistent with the notion of
"delayed justice" in the region, our study further suggests that the persistence
of amnesties has not undermined the progress toward stronger democratic and
human rights regimes in the region. It may have even contributed to that out
come (Olsen et al. 2010).
Transitional Justice Success

Early writing on the transition from authoritarian rule warned against the danger
of moving too far, too fast against the former regime. Moreover, coup attempts
following Argentina's successful prosecution of the military junta further indi
cated the danger associated with retributive justice for past human rights viola
tions. Alternatively, Latin American legal scholars doubted that democracy in the
region could evolve without trials for past human rights abuses (Mendez 1997).

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Two contending views have thus emerged regarding the capacity of transitional
justice to achieve the political goals of improving democracy and human rights
in the region.
The region's overall improvement in democracy and human rights and its
leadership in transitional justice would appear to support the argument that
these mechanisms work to improve democracy, human rights, and the rule of
law. Even in Argentina, where the military reacted against the trial of the gener
als, the trials may have been effective in subordinating the military to the demo
cratic regime. The Human Rights Prosecutions Data Base, in particular, causally
links human rights trials and Truth Commissions to improvements in human
rights in the region and beyond (Sikkink and Walling ibid).
Our own work only partially supports this widespread view of transitional jus
tice success. We concur that transitional justice has a statistically significant, posi
tive effect on changes in human rights and democracy measures. We measure
those improvements using standard social science indices: Cingranelli and Rich
ards' Physical Integrity Rights Index (PHYSINT) and the Political Terror Scale
(PTS) for human rights; Polity IV and Freedom House for democracy. We find,
however, more nuanced results when we examine particular mechanisms. Trials,
for example, do not affect democracy and human rights on their own. Truth
Commissions—when used alone—have a negative effect on democracy and
human rights measures. Certain combinations of mechanisms, however, create
positive changes. Somewhat contradicting previous scholarship, we find that trials
and amnesties together positively affect democracy and human rights measures,
whether or not Truth Commissions accompany them. We find that timing and
sequencing patterns vary. While we tend to think of amnesties as preceding
Truth Commissions and trials, sometimes they follow those mechanisms. Trials
and Truth Commissions, in short, improve democracy and human rights when
balanced with amnesties (Olsen el al. ibid).
As we would expect, not every country in Latin America perfectly matches our
cross-national findings, but we do find a pattern that reflects these general
trends. Table 1 below shows that those countries in the region that used trials
and amnesties at the top of the table tended to show greater improvements in
democracy and human rights measures than those at the bottom of the table
that did not use a combination of these two mechanisms.
In sum, Latin America shows not only leadership in the adoption of particular
types of transitional justice mechanisms but its experience in adopting these
mechanisms also illustrates positive results. The pattern of combining trials,
Truth Commissions, and amnesties has brought stronger democracies and
human rights protections to those countries in the region.
Future Directions
Despite Latin America's significant contribution to transitional justice scholar

ship, specific gaps remain. Based on our findings, we identify amnesty as a key
gap in the study of transitional justice in Latin America. Nearly every country in
the region adopted some form of amnesty shortly before or after the end of
authoritarian rule, yet scholarship has tended to ignore this widespread phenom
enon. With a shift toward greater accountability, what sort of amnesties will be
considered legal? How do these types of amnesties contribute, if anything, to
improvements in human rights and democracy?
The region also has a rich experience with other forms of transitional justice.
The region's leadership on Truth Commissions should allow researchers to gen
erate better explanations regarding when and why Truth Commissions improve
democracy and human rights and when they do not. Two other transitional
justice mechanisms—lustration and reparations—remain understudied. In

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The Forum 563
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197.221.250.202 on Wed, 05 May 2021 01:02:55 UTC
addition, the emphasis on traditional, or micro-level, justice in other parts of the

world has not caught on in Latin America. Customary justice has taken the form
of popular and unofficial forms of justice in the absence of official mechanisms.
Examples include the Peruvian community patrols or rondas, the Brazilian
practice of crime reduction through popular lynching, or theatrical outing of
perpetrators through escraches and funas in Argentina and Chile, respectively.
Why have the customary forms of justice in the region failed to capture scholarly
or practitioner attention in the Americas compared with other parts of the
world?
Finally, transitional justice success has focused on democracy and human

rights, but transitional justice may have additional outcomes that demand assess
ment. The October 2009 plebiscite in Uruguay that retained the 1986 amnesty
law suggests that civil society remains reluctant to support transitional justice. Yet
other public opinion polls in the region have found very different results. More
systematic polling could reveal new information about Latin Americans' varied
perceptions of these processes that could galvanize innovative thinking about
transitional justice.
Transitional Justice and the African

Experience
Carla De Ycaza and William Schabas
Department of Global Affairs, New York University and Irish Centre for Huma
National University of Ireland
Africa provides a living laboratory for transitional justice, blending a

international and national initiatives, including Truth Commissions, in
alized prosecutions, and customary law tribunals. The 1950s-1960s saw
independence movements throughout the continent of Africa. An
repressive authoritarian regimes that committed grave human rights a
lowed. With the 1990s came a wave of change in Africa, mainly th
democratization process. This presented the challenge of dealing wi
and memory regarding various abuses and conflicts that were assoc
past regimes. South Africa provided the model that is still used today
Truth Commissions with its Truth and Reconciliation Commission. Africa has
also proven to be particularly important for setting precedents in internationa
criminal justice through the establishment of the International Criminal Tribu
nal for Rwanda and the Special Court for Sierra Leone, as well as through the
pursuit of the first cases at the International Criminal Court (ICC), concerning
the Democratic Republic of the Congo, Northern Uganda, the Central Af
can Republic, the Darfur region of the Sudan, and investigations into th
post-election violence in Kenya.
African practice also illustrates the impact and effectiveness of mixed intern
tional and national initiatives in transitional justice. The case of Sierra Leon
shows the interaction between a mixed tribunal of international and national
judges along with a mixed truth and reconciliation commission. Rwanda mani
fests the difficulties (and solutions) that arise in the combination of interna
tional criminal justice with national and traditional justice mechanisms, mainly
through the interplay between the International Criminal Tribunal for Rwanda
and national courts, as well as the traditionally adapted gacaca courts. The case
of Uganda also illustrates this interaction between international and local mecha
nisms with the debate over peace versus justice, highlighted in the tension over

197.221.250.202 on Wed, 05 May 2021 01:02:55 UTC
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arrest warrants issued at the ICC in the context of the local conflict resolution
practice of mato oput.
Are African approaches to transitional justice distinctive? Has Africa found
own path in this area? Within international human rights law, there is resist
to the idea that fundamental norms are conditioned by cultural values. It is
that this may undermine the universality of basic principles and nourish ar
ments from governments that seek to avoid their obligations and abuse
populations. Yet when reconciliation, in addition to accountability, is the go
a process, cultural factors must be taken into account in some way. To the ex
that there are distinct African cultural values or conceptions in this regard,
may also be a particularly African road to transitional justice.
Truth Commissions
One form of transitional justice commonly utilized to bring about reconciliatio

in post-conflict African societies is the Truth Commission. The very first Truth
Commission was organized in Uganda, under the Idi Amin regime. Inspired by
experience in Chile, the concept model gained popularity in South Africa an
has since become a ubiquitous feature of transitional justice processes.
The South African Truth and Reconciliation Commission was established in
1995. South Africa provided the model that is still used today for many T
Commissions with its Truth and Reconciliation Commission. The South African
Commission was responsible for many innovations, including its implem

of victim statements and a distinctive form of provisional amnesty. It was the
to hold public hearings. The elements of reconciliation in the truth r
process also contributed to the uniqueness and future impact of the Sout
can model on subsequent Truth Commissions and the field of transitiona
in general. The role of the media in disseminating information and broa
public hearings also contributed to the impact of the South African mode
In Sierra Leone, where the Special Court for Sierra Leone and the Trut
Reconciliation Commission operated simultaneously, there was a degree o
sion between the institutions, generally regarding testimony of witness
other evidence. The existence of both Truth Commissions and tribunals can
pose various problems, such as what the role of each is and what the d
tion between the two might be. Requests by the Truth Commissions to
detainees held in court for public hearings may be denied, as was the ca
Sierra Leone. Investigative information might not be shared between th
institutions.
Many countries in Africa that have chosen to pursue truth and/or reconcilia
tion commissions. Others have chosen to pursue national unity and reconcilia
tion commissions, where the focus has been primarily on reconciliation without
an examination of truth. Some have chosen to keep their findings confidential,
for fear that publication of results could spark new violence. The fact that these
commissions have been set up throughout Africa illustrates that the use of Truth
Commissions is an overarching African practice.
Amnesties
Many countries throughout Africa have chosen to implement the practice of

amnesties. Amnesty laws are often considered to be a type of impunity. Amnes
ties are highly controversial as a tool for transitional justice, since some believe
that they help to achieve reconciliation, while others feel that they encourage
the forgetting of past atrocities.
A prime example of conditional amnesty is the case of South Africa, where the
idea of amnesty for past crimes committed in exchange for truth-telling was

197.221.250.202 on Wed, 05 May 2021 01:02:55 UTC
drawn upon heavily. There was a strong emphasis on rebuilding the relationship
between offenders and victims through social reparations and reconciliation.
The Amnesty Committee was assigned to deal with acts committed in connection
with the political conflict in South Africa. Amnesty could only be granted to indi
viduals in relation to their involvement in specific acts relating to a political
objective with full disclosure of relevant facts (du Bois-Pedain 2007:21-22).
Amnesty was also refused to offenders of the most grievous crimes.
In other situations, blanket amnesty is applied as a tool of transitional jus
tice. In 2000, Uganda also adopted its own form of amnesty through the crea
tion of an Amnesty Act, specifically for anti-government militias, guaranteeing
those offenders who came forward a resettlement package and protection from
criminal prosecution in exchange for their truth-telling. The Amnesty Act of
2000 allows blanket amnesty to those who participated in rebellion against the
government of Uganda if they willingly surrender. The ICC does not recognize
the Amnesty Act of 2000, as this act is a construct of national law, not interna
tional law. Similar amnesty provisions have been discussed in peace talks in
Sierra Leone, Liberia, the Democratic Republic of the Congo and other
countries.
Some countries, such as Liberia, the Democratic Republic of the Congo an

Kenya, have started to exclude serious crimes from their amnesties so as to com
ply with what they consider to be the requirements of international law. Amn
ties can also be made conditional, as was the case in the South African Truth
and Reconciliation Commission, where recipients were required to adhere to cer
tain conditions, including revealing the truth. This is where the threat of prose
cutions might be important in achieving the goals of amnesty for truth-telling.
Amnesties should also work in conjunction with other transitional justice mecha
nisms, such as Truth Commissions or court systems.
International Courts and Tribunals in Africa
Africa provides the most complex portrait of international criminal justice o

continent. It has hosted one of the two ad hoc international criminal tribunals
established by the Security Council in the early 1990s, the International Crimin
Tribunal for Rwanda. Subsequently, a third international criminal tribunal, th
Special Court for Sierra Leone, was created. Finally, with thirty States parties
the Rome Statute of the ICC, Africa has found itself the focus of the work of this
new, permanent tribunal. The first five "situations" to be addressed by the ICC
are in Africa. No other continent even comes close to this extensive panorama
of international criminal justice institutions.
The International Criminal Tribunal for Rwanda
The International Criminal Tribunal for Rwanda was created in 1994 pursuant
to Chapter VII of the United Nations Charter, by Security Resolution 955 to
prosecute those responsible for genocide and other violations of international
law. The purpose of the Council in creating the International Criminal Tribunal
for Rwanda was to ensure that violations of international peace and security
would be "halted and effectively redressed," in addition to the task of bringing
peace and reconciliation to Rwanda. (Stover 2004:52).
Many believe that the Court is more focused on developing international law
than on the potential impact it could have within Rwandan society. Trials should
be integrated into a broader program of social reconstruction: "People tend to
see [the ICTR] as an activity of the international community conducted primarily
for its own benefit, with little relevance to processes of reconciliation in
Rwanda." (Stover 2004:63) Nevertheless, the International Criminal Tribunal for

197.221.250.202 on Wed, 05 May 2021 01:02:55 UTC
The Forum 567
Rwanda has provided an invaluable historical narrative of the genocide an

related conflict that was perpetrated in 1994. It has also brought to justic
eral dozens of the principal perpetrators of the genocide.
The Special Court for Sierra Leone
Following the establishment of the first two ad hoc international tribunals

was a push for less costly models with significantly greater involvement
local government. The Special Court for Sierra Leone is an independent ju
body set up to "try those who bear the greatest responsibility" for the war
and crimes against humanity committed in Sierra Leone during the co
civil war. The Special Court for Sierra Leone has its seat in Freetown
Leone, with many activities also conducted in The Hague and includes a
panel of judges, both international and local from Sierra Leone. In thi
international criminal law has evolved from the international tribunals of the
1990s to include elements of local participation, with more engagement of those
from the country in question. The fact that the Court is located in the country
also adds to the dissemination of information and the impact of the body upon
local citizens.
Do Truth Commissions and International Courts Work Together?

The example of Sierra Leone presents a unique case study regarding the rela
tionship between Truth Commissions and courts. Can these mechanisms work in
conjunction or do they present conflicting approaches to transitional justice?
Both institutions began work around the same time in neighboring locations in
Freetown. The relationship between the bodies was never officially clarified.
Although these bodies worked in parallel for most of the duration of the Truth
Commission, questions arose regarding resources, sharing of testimony, the use
of self-incriminating evidence, the subpoena power of the court for Truth Com
mission materials, the role of victims in proceedings, testimony of perpetrators
and more. The threat of prosecution presented a challenge for perpetrators testi
fying at the Truth Commission. However, despite these issues and complications,
the Special Court for Sierra Leone and Truth Commission were generally able to
coexist in harmony. The example of Sierra Leone shows that courts and Truth
Commissions can work together toward the same goals of transitional justice. It
may well be, as Sierra Leone shows, that it is better that they work in parallel,
rather than attempting to formalize and develop a relationship between them.
Permanent International Court: Targeting African Cases?
With the advent of the permanent ICC, it is likely that we will see many more
instances of Truth Commissions and courts working within the same space. The
ICC has thus far initiated cases in four countries: Uganda, the Democratic
Republic of the Congo, the Central African Republic, and Sudan. A fifth "situa
tion" concerning post-electoral violence in Kenya in 2008 is under investigation.
The Court is also studying situations in Guinea and Cote d'lvoire. The first trial
at the ICC, of Thomas Lubanga of the Democratic Republic of the Congo, began
on January 26, 2009. The second trial of Congolese militia leaders Germain
Katanga and Mathieu Ngudjolo Chui began early in 2010. Fourteen individuals
have been charged thus far at the ICC, all of them Africans.
The review conference of the Rome Statute of the ICC is scheduled to take
place in Kampala from May 31 through June 12 of this year. The fact that this
meeting will be taking place on the African continent will allow for further
dialogue between African leaders and the community of international justice

197.221.250.202 on Wed, 05 May 2021 01:02:55 UTC
scholars and practitioners. It will also likely bring to the forefront issues raised
regarding the Court's focus on African cases.
The ICC's focus upon Africa has left it open to criticism. On the one hand, its
attention to Africa must surely be welcomed. At the same time, there is the risk
that this be perceived as an institution dominated by the North. Tension has
emerged between the ICC and the African Union, mainly centering on the refer
ral of the Darfur case to the Court and the issuance of an arrest warrant against
the President of Sudan (AUPD 2009). Some have charged that the ICC is a neo
colonialist tool used to further repress Africa (Goldstone 2009:1). Others believe
that the ICC is being used by African leaders to remove their opponents (Gold
stone 2009:3). This viewpoint is supported by the fact that in the Democratic
Republic of the Congo and Northern Uganda, the only cases thus far have dealt
with rebel leaders and not government forces, with the exception of al-Bashir
and Harun in the Darfur case. As of March 2009, 30 out of 111 States parties
to the ICC are African countries. Senegal was the first State to sign the Rome
Statute (Goldstone 2009:3). Does this then indicate a fundamental shift in the
politics and ideologies of African Union member countries?
Overall, opinion surveys seem to show that Africans welcome prosecution for
human rights abuses and want perpetrators to be held accountable, but that this
must not jeopardize the quest for peace. Should the international community
work with local actors to search for the truth about what happened while creat
ing a common history and attempting to reconcile parties to achieve peace, or
should it focus its efforts mainly on holding perpetrators accountable for their
actions?
Is There an African Approach to Transitional Justice?

African "Tradition" or "Culture"
This discussion of African traditions with respect to rights and justice, in compar
ison with that of other regions, suggests that there is in fact a distinctive African
tradition. According to Archbishop Desmond Tutu, "[The traditional African
concept of] ubuntu says I am human only because you are human. If I under
mine your humanity I dehumanize myself. You must do what you can to main
tain this great harmony, which is perpetually undermined by resentment, anger,
desire for vengeance. That's why African jurisprudence is restorative rather than
retributive." (Little 1999:69) This traditional African philosophy of ubuntu
focuses on the good of the person for the good of the group and excludes a
retributive approach to conflict resolution and transitional justice. According to
the jurisprudence of ubuntu, remedies or punishments for crimes committed are
intended to bring the perpetrator and victim or victim's family together. This
restorative approach to transitional justice was favored by the South African
Truth and Reconciliation Commission, which implemented the idea of amnesty
to increase accountability and reconciliation between offenders and victims.
There was also a strong emphasis on a contribution by offenders to social repara
tions; that is, restoring relations between perpetrators and victims. (Little
1999:73) This concept of ubuntu exists in South Africa, Zimbabwe, Rwanda,
Burundi, Uganda, and Tanzania, among others, with the general sense remain
ing the same relating to a shared humanity and generosity.
Applying Traditional Methods to Modern Conflicts
The perceived failure of efforts to resolve conflict through modern approaches

of transitional justice has led to renewed interest in exploring traditional meth
ods of conflict resolution. Tradition is clearly still present in modern-day politics

197.221.250.202 on Wed, 05 May 2021 01:02:55 UTC
The Forum 569
and can therefore be an important uniting source in post-conflict societies

strategies of conflict management are still employed in many countries,
ing Sierra Leone, where the authority of the Poro, Sande and Humui
are used as cultural arbiters to resolve conflict. (Zartman 2000:203) In Mozam
bique, absent any official transitional justice program to address the conflict,
madzoca traditional healers were used to reconcile the trauma of the conflict by
performing ku socera ceremonies to heal the magamba spirits (Huyse 2008:75).
Traditional methods are sometimes even applied at the national level, with the
adoption of the Poro and Sande societies by the former president of Liberia,
and recommendations by the Liberian Truth and Reconciliation Commission to
implement traditional justice practices such as the Palava Huts in order to foster
national healing and reconciliation (Zartman 2000:203; Rep. of Liberia TRC
2009:273).
Traditional strategies of conflict resolution are applicable according to the
extent of similarity between modern and traditional conflicts (Zartman
2000:206). Oftentimes, modern conflicts in Africa arise as a result of past ethnic
tensions, ongoing disputes over resources, and relations with former colonial
powers. Accordingly, traditional strategies may be more relevant to managing
these types of conflicts, especially if these traditional strategies and institutions
are heavily relied upon in a given village or society. The emphasis on kinship
and lineage in many African societies led to the involvement of the whole soci
ety, segment, clan or village in dealing with conflicts. (Zartman 2000:208) Zart
man argues that simple and larger scale conflicts throughout Africa are actually
two sides of the same coin and are mutually reinforcing. As a result, attempts are
made to apply traditional strategies to modern conflicts at a national level with
varying degrees of success. Some examples of these efforts to integrate tradi
tional justice strategies and structures to the transitional justice process include
the central involvement of the Baganda kingdom in the resolution of political
conflicts in Uganda; the statutory involvement of traditional rulers in conflict
management bodies at local, state, and federal levels in Nigeria; implementation
of the gacaca justice system in Rwanda; attempts of the post-apartheid govern
ment in South Africa to employ the king of Zululand to resolve violent conflict
in the KwaZulu/Natal Province; referral of cases and disputes to the Bashinganta
he council of elders in Burundi; the role of clan elders in reconciling warring
factions in northern Somalia; the implementation of mato oput and other Acholi
practices and ceremonies in achieving peace between clans and warring factions
in Northern Uganda; and the involvement of traditional rulers in reconciliatory
meetings in the Liberian civil war (Zartman 2000:214).
Despite the perceived success of some of these methods, many difficulties
arise in applying traditional methods at the national level, since many of these
methods were originally intended to be localized, not generalized beyond local
boundaries. Despite the many similarities in philosophy and tradition across
African cultures, there are still distinct differences in the approach to the reso
lution of conflict, as many ceremonies and practices are quite particularized,
while holding these commonalities in values. We are then presented with the
challenge to generate a model of transitional justice that incorporates both tra
ditional and modern approaches that uniquely fits the particularities of each
case.
Conclusions
We have seen a myriad of approaches to transitional justice in the Afric

context, ranging from Truth Commissions to courts to the implementati
of amnesties to traditional approaches to conflict resolution. Both restorati
and retributive justice elements are present in many of these cases, as we

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The combination of these approaches and elements is what is unique to the case
of Africa.
There is certainly an African dimension to transitional justice. Models and
strategies that have been employed, perhaps with some success, in other parts of
the world cannot automatically be transposed to the African setting without mod
ification. Models of transitional justice used throughout the world can be imple
mented in an African context but must be adapted to fit the specific norms and
customs of that society. The South African Truth and Reconciliation Commission
is one such example of how transitional justice mechanisms used in other parts
of the world can be adapted and improved upon to fit the African model. The
case of Peru adopting the South African precedent for a Truth Commission
instead of the Chilean example illustrates the fact that Africa's improvements on
the Latin American model have set a new standard for the field. This is just one
notable achievement among many that Africa has pioneered in the field of tran
sitional justice. The jointly operated international-local tribunal model of Sierra
Leone paved the way for other tribunals, such as in Cambodia, and provided
examples of how to integrate international and local personnel and practice in
order to have a greater impact on the local population, improving upon the
international tribunal model established for the former Yugoslavia and Rwanda.
The cases and investigations by the ICC in Uganda, the Democratic Republic of
the Congo, the Central African Republic, Sudan, and Kenya have set the prece
dent of how the Court will approach future investigations and cases, both in
terms of prosecution and in terms of outreach, combining local approaches with
international criminal law. This approach to transitional justice of adapting exist
ing mechanisms, such as Truth Commissions, tribunals, and international courts,
to the African context by implementing local practices and customs in order to
improve the overall policy design and set new standards for the field is what
makes the African model unique.
Politics as Usual? US Torture Practices

2001-2008 and Transitional Justice3
Jorge Heine
Balsillie School of International Affairs, Wilfrid Laurier University
"We need to look forwards as opposed to looking backwards."

President Barack Obama.4'5
If every administration started to re-examine what every previous administration

did, there would be no end to it. This is not Latin America.
Senator Arlen Specter (cited in Cavallaro 2009)
The United States under President George W. Bush was not an authoritarian
regime. Yet, serious human rights violations were committed, and an elaborate
3I would like to thank David Forsythe for his extensive comments on an earlier version of this text. All usual
caveats apply.
4Quoted in Johnston, David and Charlie Savage (2009) "Obama Reluctant to Look into Bush Programs,"
New York Times, January 11. Available at, http://www.nytimes.com/2009/01/12/us/politics/12inquire.html.
'This saying has become a bit of a mantra for President Obama for a number of issues, including the issue of
human rights abuses under the Bush administration. He apparently said it first in an ABC interview with George
Stephanopoulos on January 11, 2009, before taking office, but has repeated it on many occasions since.

197.221.250.202 on Wed, 05 May 2021 01:02:55 UTC
The Forum 571
legal scaffold to justify, legitimize, and rationalize those violations was con
structed. As noted historian Arthur Schlesinger Jr. put it, "No position taken has
done more damage to the American reputation in the world—ever" (cited in
Mayer 2009: 8). More and more evidence about these practices during the Bush
administration after 9/11 has become public. The degree to which they were not
just condoned, but actively encouraged as official policy from the highest levels
of the United States Government, including the White House, the Pentagon,
and the Justice Department, raised a question for President Barack Obama:
Should something, anything, be done about this?
The purpose of this article is to examine this issue from an alternative perspec
tive to that of "politics as usual." The latter takes the question of US torture
practices as just another issue on the political agenda, examines how it polls,
and draws its conclusions for political action accordingly. This article identifies
the problem of US torture practices and their attempted legalization from 2001
to 2008. It then examines the various policy options available to the new admin
istration to deal with it. It argues that transitional justice (TJ) provides an
alternative lens through which to look at these options.
The Emergence of a New Field

The shift from the Bush to the Obama administration was analogous in some
ways to the transitional politics witnessed in so many parts of the world over the
past four decades. The confronting of an evil past and what to do about it is a
critical issue for the new government. The challenges arising from that task have
given rise to TJ, an interdisciplinary field in which political science, law, history,
sociology, anthropology, theology, psychology, and other disciplines converge.6
Much as democratization and political transitions, TJ is also marked by contin
gency and paradox. Transitions are fluid and both political action and the uses
of the law find themselves under a different set of rules from those obtaining
otherwise. To identify the transformative opportunities presented by the conjunc
ture becomes an essential task for political leaders.
Originally, TJ was mainly concerned with transitions from authoritarian to
democratic rule. Yet, after the many internal conflicts that erupted in the post
Cold War world, TJ has also been applied within the wider panoply of nation
and peace-building instruments after wars come to an end. Some TJ tools, like
Truth Commissions (TC), have shown to be so prevalent that they are now
deployed in advanced Western democracies, like Canada, to investigate human
rights abuses7 as well as to investigate the conditions that led to the breakdown of
democracy—as the United States proposed be done in Honduras after the June
2009-January 2010 crisis.8
Torture and Beyond

Serious human rights violations were committed under the Bush administration
from 2001 to 2008, in the name of the "war on terror." Not just torture, but
large-scale domestic warrantless wiretapping, massive use of extra-ordinary rendi
tion, extensive surveillance of large numbers of innocent citizens and a Central
Intelligence Agency (CIA) "hit-team program," launched in 2001 (albeit never
6For a critical perspective on how the field has evolved and the claims for its interdisciplinary nature, see Bell
2009.
7In 2008, the Canadian government established the Canadian Truth and Reconciliation Commission on Indian
Residential Schools to examine the abuses committed against Aboriginal children in boarding schools to which the
Aboriginal population was forced to send their children for many decades from the late nineteenth century onward.
See About the Truth and Reconciliation Commission (TRC). http://www.trc.ca/logo.html.
8Such a Commission was in fact launched in May 2010. On the Honduras crisis, see Ruhl 2010.

197.221.250.202 on Wed, 05 May 2021 01:02:55 UTC
operationalized) to kill A1 Qaeda leaders, but kept from congressional oversight

committees, are some of these activities.9 Why focus on torture?
The practice of torture, like that of so many other less than admirable human
activities, has been around for a long time, and no doubt will be with us for the
foreseeable future.10 Yet, not since the days of the Spanish Inquisition had there
been such a sustained effort to rationalize it and justify it both morally and leg
ally as in the first decade of the 21st century.11 Over the course of the past five
centuries, much progress had been made in condemning such long-established
interrogation techniques as water-boarding or more modern ones like electro
shocks. The Geneva Conventions, largely inspired and drafted by American law
yers, is one place where this emerging consensus against torture expressed itself,
as it did in the UN Convention Against Torture. This does not mean that such
practices were eradicated. But it did mean they were rarely publicly acknowl
edged, and generally hushed up. The best proof of that is the widespread use of
stealth torture, that is, "enhanced interrogation techniques" that do not leave
physical evidence of their application.12 If torture were an interrogation tech
nique like any other, no efforts would be made to disguise it. Yet, that is not the
case. Why?
The reasons for our almost instinctive recoiling from rationalizing the abuse
of another person's body and spirit for the purposes of extracting information is
associated with our common humanity. Much as our self-preservation instinct
prevents most people from engaging in self-mutilation, mutilating or inflicting
extreme or intense suffering upon others for the sake of obtaining information
that presumably could be obtained by other means seems a particularly abhor
rent type of activity.
There are also utilitarian reasons why the trend has been toward banning tor
ture from the theater of war and elsewhere, especially in democracies. Govern
ments, and the high command of the Armed Forces, quickly discovered that the
practice of torture had a demoralizing effect on officers and soldiers. Torture
tends to dehumanize both the torturer and the tortured.
There are two additional practical reasons why for much of the 20th century
in international humanitarian law the trend has been to outlaw torture. One of
them is strictly quid pro quo. Armies who do not torture prisoners of war are les
likely to have their own soldiers tortured if they fall in the hands of the enemy
The other is the complex and in some ways still unresolved issue of how useful
torture actually is to extract actionable intelligence information, somethin
about which the jury is still out.
The question of US torture practices from 2001 to 2008 during the so-called
war on terror came to the fore during the US 2008 presidential campaign as we
as during the first year of the Obama administration. The presidential promise
to close the Guantanamo detention camp in Cuba, where many of these pra
tices have reportedly occurred, the banning of these practices shortly after Pres
dent Obama's inauguration, and the flood of documents that have been
released in relation to them, all put the issue front and center in the US politica
debate. The way the Republican opposition framed the issue in the course o
2009 was by arguing that prosecuting those who gave the orders, shaped the po
icy and crafted the legal memoranda that served to justify torture practices wou
be "to criminalize policy differences." The moment one elected US pre
dent started to prosecute his predecessor on policy differences, the whole U
9For a thorough discussion of all these activities, see Mayer, ibid. See also Grey 2006; and, McKelvey 2007.
1()For a survey on the historical evolution of torture practices, see Rejali 2007.
11 See, for example, Bagaric and Clark 2007; and Gross 2010, especially chapter 6.
12On stealth torture, see Rejali, op.cit.

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The Forum 573
government system would come tumbling down. It would thus be best to

sleeping dogs lie."
The Nature of the Problem
In February 2009, the leak of a secret report by the International Commit

the Red Cross (ICRC) on the torture and cruel, inhuman, and degrading
treatment of fourteen "high value" detainees in CIA custody brought to the
the issue of what to do about the human rights violations committed unde
George W. Bush administration (International Committee of the Red C
Regional Delegation for United States and Canada 2007).
Shortly thereafter, the US Senate Judiciary Committee held public heari
on the pros and cons of setting up a TC to investigate such violation
others—torture practices were also committed by Army interrogators in A
Ghraib and elsewhere (on Abu Ghraib, see Danner 2004). Floated first in
academic circles and proposed later in a Georgetown University speech by
Senator Patrick Leahy (Democrat-Vermont), chairman of the Committee, the
idea was gathering support in Congress and among the public.
Though not reaching the levels of the Latin American experience in human
rights violations in the seventies and eighties (see Forsythe 2009), these viola
tions were not minor. Torture practices (ending in some cases in death) against
individuals suspected of having been associated with 9/11 were not the result of
"a few rotten apples" or "some excesses" (another well-known line of defense of
the Latin American juntas when confronted with evidence of their misdeeds).
They were the product of a systematic policy expressed in explicit instructions to
the interrogators of the US Armed Forces and the CIA to obtain "actionable
intelligence." The Office of Legal Counsel (OLC) in the Justice Department pro
duced several memos that set aside a number of techniques from the list of
those banned by the American Anti-Torture Act.13 And to torture by water-board
ing, beatings, food deprivation, and placement in coffin-like boxes, one must
add forced disappearances, kidnappings, and renditions.14 It is the issue of tor
ture practices that has been the focus of those calling for special investigations.
The argument against prosecuting the torturers and those who instructed
them to proceed, providing them with the legal tools to do so, was couched in
terms of the passionate anti-terrorist climate that emerged in late 2001 after
9/11. A majority of citizens and some officials were ready to do anything to find
those responsible for the attacks on the World Trade Center and the Pentagon,
and to prevent similar attacks. It would thus be unfair to prosecute eight years
later. Again, this is not dissimilar to the line of argument defending the Latin
American generals and their henchmen for their actions after military coups,
including "disappearances," kidnappings, and torture, stating that they were
effectively at war against the Communist enemy and that their actions needed to
be "contextualized."
Senator Leahy, himself a former prosecutor, arguing in favor of a TC, cited as
precedent a Commission established in the seventies by Senator Frank Church
to investigate abuses by the intelligence agencies (many of them committed in
the CIA's involvement in Chile, both before and after the 1973 military coup).
Speaker Nancy Pelosi and Representative John Conyers, chairman of the House
13On the crafting of these documents, see Sands 2008. For a full documentary record on the issue, see Jaffe
and Singh 2007. See also Cole 2008.
14One of the most striking things about this is that the very design of the interrogation program was geared to
make the 24-hour day of detainees of living hell: the infliction of torture not as an off-and-on process but a per
nent condition. A key instrument was sleep deprivation, a "baseline" element. Some detainees were not allowed
to sleep for two or three weeks in a row. The program in its initial phase included interfering with all ba
life functions—access to solid food, bodily hygiene and medical treatment.

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Judiciary Committee, were also on record arguing in favor of moving forward on

this issue. Representative Conyers submitted a bill (H.R. 104) to create a
National Commission on Presidential War Powers and Civil Liberties to investi
gate these violations. CIA director Leon Panetta also initially manifested h
port for the establishment of a TC.
Yet, President Obama and his Attorney General, Eric Holder, who h
demned these practices and banned their further use, mostly opposed the
ecution of these violations, saying that they would rather look ahead
opposition to the creation of a TC is less clear. However, given the co
able support for the latter among top congressional leaders in early 20
only explanation for its sudden cancellation is that it was killed by the W
House.
A Transitional Justice Perspective

This debate is not new. In transitions from authoritarianism, the newly emerg
democracies have also had to confront the legacy of an evil past.15 Given oth
priorities, it is tempting to sweep past human rights violations under the ru
That is why in the eighties Uruguay approved an amnesty law that condoned
such violations under military rule. An alternative approach, modeled after t
Nuremberg trials, was used in Argentina. The government of President R
Alfonsin (1985-1989) set up special tribunals to prosecute the crimes of
military junta that ruled the country from 1976 to 1983, tribunals that convi
the generals and sent them to prison. None of these approaches worked.
Uruguay, a number of plebiscites were held to revisit the issue, which, a qua
of a century later, still refuses to go away. In Argentina, several military upris
forced the pardon and early release of former junta members.
It is for that reason that Chile, South Africa, Peru, El Salvador, Guatemala
Uganda, and many other countries established TCs, a policy tool that aims fo
middle-road between the extremes of total amnesty and special prosecuti
TCs are independent but officially sanctioned bodies tasked with examining t
human rights violations committed during a specified period of time. They a
not tribunals, and, as a rule, do not have judicial powers. Formed by emin
personalities representing a broad cross-section of society, they are charged w
delivering a report, generally within a six-month to two-year period.16 As a r
they do not have any sanctioning powers, but they often relay their evidence
the courts. Prosecutions may or may not ensue.
Their hybrid condition and flexibility make them ideal to deal with such s
tive issues. Their reports constitute an official acknowledgment of the dama
and suffering caused by agents of the state. The information collected make
possible to reach an informed decision as to whether to prosecute the culprit
not. The Truth and Reconciliation Commission (TRC) chaired by Raul Rettig i
Chile (1990-1991) played a key role in facilitating that country's successf
transition to democracy.1' Something similar could be said about the T
chaired by Archbishop Desmond Tutu in South Africa (1995-1998), which
instrumental in allowing South Africans to come to terms with their aparth
past.18
15Two standard sources on the subject of transitional justice are Teitel 2000 and Kritz 1995.
16On truth commissions, see Freeman 2006 and Hayner 2002.
17On the Chilean TRC, see Correa 1992.
18On the South African TRC, see Boraine 2000. There is an extensive literature on the South African TRC,
some of it critical. See for example, Mandani 2002. For a recent, balanced, assessment that acknowledges a number
of shortcomings of the SATRC, but that also recognizes the latter's contribution to the democratic transition, see
Chapman and van der Merwe 2008.

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The Forum 575
Torture Practices as Politics as Usual
In the early months of the Obama administration, then, the opportunity to

a clear blue line between what took place from 2001 to 2008 and the new ad
istration was very much there. The White House even could have let the
gress take the initiative and set up either a TC of sorts, the equivalent of t
9/11 commission, or something similar to the Church commission in the se
ties. Yet, none of this happened, and the White House expressed its oppositi
to any such venture, reasoning that it would unnecessarily antagonize the R
lican party at a time when President Obama would need all the Congress
support it could get to pass its ambitious legislative agenda. The various pro
to set up any such body were thus nipped in the bud—which does not mean
the Republican opposition did not become shriller and shriller in its opposit
to President Obama's programs.
One must keep in mind the caveats expressed above about how context
cific these decisions are, that TCs are not necessarily panaceas, and that
countries have decided to ignore that "evil past" and have managed to f
ahead. Mozambique is often cited as an example, as is Spain, though the
that seventy years after the Spanish Civil War and of some of the worst crim
Francoism, the issue of those crimes refuses to go away is not easy to dismis
Brazil, another such example of non-TC experience, President Lula has
broached the creation of one. That said, as the history of democratic transitions
tells us, the notion that it is best to "forgive and forget" can be a misleading
one. In not coming to terms with the wounds inflicted on the body politic, and
not giving formal, official recognition to these violations, these wounds may con
tinue to fester, while the culprits do not necessarily express their gratitude for
this misplaced generosity. The dubious conclusion that it was these "enhanced
interrogation techniques" that prevented another 9/11 might be invoked again
(and already has) in the not-too-distant future. Given no clean break with such
inherently abhorrent practices, they might well be revived.
Moreover, given Mr Obama's caution in the spirit of bipartisanship, one would
have thought that those who were on the forefront of this "dark side" of US pol
icy, either at the highest levels or as the lawyers who wrote the memos of the
OLC (and therefore would have the most to lose from a different approach)
would at least be circumspect on the Guantanamo issue, if not grateful to the
President for his magnanimity. Yet, that was not the case. Former Vice President
Dick Cheney led the offensive against the project to close Guantanamo (see, for
example, Cheney 2009). John Yoo, the main drafter of the "torture memos" at
OLC, also weighed in, arguing against closing the detention camp. Since they
have already gotten away with torture without so much as a slap on their wrists,
they see no reason not to come forward.19 They thus continue to defend what
they consider to be a just cause. In the absence of an official report that would
clarify, once and for all, what it was that exactly happened with these torture
practices in Abu Ghraib, Guantanamo and elsewhere, and whether the informa
tion thus obtained was of any use to prevent any further attacks on the United
States, the debate remains open.
Conclusion
A little over six months into office, in August 2009, Attorney General Er
Holder announced the appointment of a special prosecutor to investigate
19John Yoo gave his own version of the torture practices issue in his 2006 book and has participated actively i
the public debate on it in 2009 and 2010. For another spirited defense of these practices, see Thiessen 2010. Th
sen argues that torture has been instrumental in obtaining information that has made it possible to prevent further
terrorist attacks, an argument that has been questioned by others as factually incorrect.

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whether US torture practices in CIA detention camps from 2001 to 2008

exceeded their instructions. This decision, that showed independence from the
White House, was largely triggered by the release of the hitherto classified report
of the former CIA Inspector General (the "Helgerson report") on such prac
tices. The special prosecutor, John Durham, is not an outside attorney but a Jus
tice Department official. He reports directly to Holder but is independent and is
tasked with investigating the cases of CIA interrogators who went beyond the
already lax guidelines provided by the "torture memos" from the OLC in the
Bush administration. Holder has talked about the need for a public "reckoning"
over this tragic episode. Yet, if that is the case, much more than a limited, partial
and highly circumscribed investigation by one of his subordinates is needed.
Transitional justice is not only about the latter. It is also about truth and about
symbols. There is a reason why countries which make the transition from
authoritarian to democratic rule engage in complex rituals that can go from suc
cessor trials to TCs to other types of inquiries into their evil past. If any, the sanc
tions emerging from such exercises tend to be limited. But the cleansing they
produce of the body politic is necessary for the succeeding regime to start its
mandate with a clean slate. Torture is not just another issue among many on any
given political daily agenda. It is, arguably, one of the great moral questions of
our time. Those who ignore this do so at their peril.
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Transitional Justice: The Quest for Theory to Inform Policy

Stable URL: https://www.jstor.org/stable/23016738

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Forum : Transitional Justice: The Quest for

To track developments, there is now a journal, The Int

The Past: Criminal Justice

doi: 10.1111/j. 146&-2486.2011.01016.x

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The Past: Truth Commissions and Combinations of Factors

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national and regional peace and reconciliation. It is also possible that

Different researchers can legitimately be interested in different TJ aspects

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Various polities and international organizations continue to face demands fo

Transitional Justice in Latin America

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goals. We conclude with reflections on the direction of future transitional

Transitional Justice Innovations

Restorative justice in the region has included other inno

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Transitional Justice Adoption

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strength of domestic and international alliances and reduce the pressure

Transitional Justice Success

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Despite Latin America's significant contribution to transitional justice scholar

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CO 00 I> ,_h" LO" CD a> iff CD o

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addition, the emphasis on traditional, or micro-level, justice in other parts of the

Finally, transitional justice success has focused on democracy and human

Transitional Justice and the African

Africa provides a living laboratory for transitional justice, blending a

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One form of transitional justice commonly utilized to bring about reconciliatio

Commission was responsible for many innovations, including its implem

Many countries throughout Africa have chosen to implement the practice of

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Some countries, such as Liberia, the Democratic Republic of the Congo an

International Courts and Tribunals in Africa

Africa provides the most complex portrait of international criminal justice o

The International Criminal Tribunal for Rwanda

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Rwanda has provided an invaluable historical narrative of the genocide an

The Special Court for Sierra Leone

Following the establishment of the first two ad hoc international tribunals

Do Truth Commissions and International Courts Work Together?

Permanent International Court: Targeting African Cases?

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Is There an African Approach to Transitional Justice?

Applying Traditional Methods to Modern Conflicts

The perceived failure of efforts to resolve conflict through modern approaches

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and can therefore be an important uniting source in post-conflict societies

We have seen a myriad of approaches to transitional justice in the Afric

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Politics as Usual? US Torture Practices

"We need to look forwards as opposed to looking backwards."

If every administration started to re-examine what every previous administration

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The Emergence of a New Field

Torture and Beyond