Transitional Justice in the Asia-Pacific (38 page)

To date, scholarship concerned with the practices and processes of transitional justice
has largely overlooked or ignored the Asia-Pacific region. It has, instead, favoured the study of transitions and the patterns of accountability and impunity for human rights violations that accompanied them, in Latin America, Africa and Europe. Yet, as we have seen in this book, the practices and processes of transitional justice are being implemented in the Asia-Pacific region as states and other actors grapple with the question of how best to address human rights violations committed in the past. In such a light, this book has sought to answer three sets of questions about the experience of transitional justice in the Asia-Pacific. First, which transitional justice practices have states in the Asia-Pacific adopted to address past atrocities? What factors influenced the decision to implement particular mechanisms, in isolation and in conjunction with other practices? What were the processes according to which these chosen practices were adopted? Second, what problems were associated with the implementation of particular transitional justice mechanisms or, indeed, decisions not to employ other practices? Did particular controversies emerge from the implementation of particular transitional justice practices? Did they give rise to public and scholarly debates about how best to address past human rights violations? Third and finally, what have been the outcomes associated with the implementation of transitional justice practices in the
Asia-Pacific, for peace, democracy and human rights? What have transitional justice mechanisms achieved, both independently and in combination with other mechanisms, in the transitional and post-transitional states in which they have been adopted? In terms of outcomes, what have been the limitations associated with the particular combinations of transitional justice mechanisms chosen in the cases of the Asia-Pacific?

To answer these questions we adopted a two-pronged approach. First, we sought to situate the study of transitional justice practices and processes in the Asia-Pacific within a global context. To this end, Payne and Sikkink's chapter (Chapter
1
) provided our starting point by explaining the emergence, diffusion and impact of transitional justice measures on a global level, and then isolating particular trends associated with each of these phenomena in the Asia-Pacific. Second, the following chapters provided in-depth case studies of six transitional and post-transitional states in the Asia-Pacific, drawing on the theoretical findings presented in Payne and Sikkink's chapter but delving further into the nuances and particularities of the situations at hand. Each of the cases selected for inclusion in the volume has recently embraced the practice of transitional justice. Together they have implemented a range of different mechanisms and attempted several different combinations of transitional justice measures. While some have been reasonably effective, others have proved more disappointing.

This concluding chapter summarises our key findings and outlines the theoretical contributions that they make to the broader study of transitional justice. It focuses on three key areas of transitional justice research. Returning to the ‘three debates’ outlined in our Introduction, the first section considers how these debates might be further developed or modified to better account for practices and processes of transitional justice implemented in the Asia-Pacific. In the second section, we examine what the experience of transitional justice in the Asia-Pacific tells us about the emergence and diffusion of transitional justice measures more generally. Third, we then turn to examine what the cases of the Asia-Pacific tell us about the impact of transitional justice measures although,
in doing so, we are mindful of the fact that it may simply be too early to evaluate the outcomes of some very recent practices and processes. The remainder of this conclusion then canvasses the practical implications of our findings, in general and for those states now experiencing the so-called ‘fourth wave of democratisation’ in the Middle East and North Africa.

Until now, the scope and variety of transitional justice mechanisms employed in the Asia-Pacific region has been scarcely recognised by scholars of transitional justice. Until recently, the fact that at least a dozen commission-like bodies have been established in South Korea had passed without comment in the field. Similarly, the case of Sri Lanka, where numerous inquiries into abuses and disappearances, and even some limited prosecutions, have taken place, has received relatively little attention. Even less attention has been afforded on a global level to the adoption of major transitional justice initiatives in the small island states of the Pacific, such as the Solomon Islands. Indeed, as Payne and Sikkink note in Chapter
1
, in global terms the experience of transitional justice in the Asia-Pacific has been underrepresented in cross-national comparative studies. In part this is due to the fact that many of the practices and processes undertaken in the region are of relatively recent genesis (for example the Solomon Island's ongoing TRC started in 2009), have occurred in sub-state regions of Asia-Pacific states (for example, the cases of Aceh in Indonesia, or Bougainville in Papua New Guinea), or have taken place in small Pacific Island states with populations too small to be captured in most global datasets.
¹
Thus, although the Asia-Pacific experience has begun to be documented in some recent global databases, much of the data included in them appears to underrepresent the reality of transitional justice in the region, the quality of
information included for each state is decidedly uneven, and in-depth analyses of transitional justice cases in the region remain limited.
²
The case studies in this volume thus provide crucial insights into the Asia-Pacific experience. What is more, they have the potential to inform our understanding of the three key debates of transitional justice scholarship: prosecution versus pardon, retributive versus restorative justice, and bottom-up versus top-down approaches.

First, the experience of transitional justice in the Asia-Pacific confirms the idea, highlighted most prominently by the Latin American and African cases, that the ‘culture of impunity’ often possesses a strong hold over transitional states. In the Asia-Pacific, as in the rest of the world, this seems to be most acute in the period immediately after a transition has taken place. At first sight, the cases of the Asia-Pacific thus appear to largely conform to the ‘pardon’ side of the ‘prosecute versus pardon’ equation. Aceh, the Solomon Islands and East Timor all established formal amnesty laws to help facilitate their transitions to democracy and peace. Although Cambodia offered several amnesties targeted at particular individuals for specific political reasons, for an extended period post-transition it largely chose not to address the past, just as South Korea had done, thus resulting in what might be called de facto amnesties for perpetrators of human rights violations.

As we have seen in this volume, however, the practice of impunity did not endure in many states of the Asia-Pacific. Both endogenous and exogenous factors help to explain how demands for accountability came to challenge the culture of impunity in these cases. In the case of South Korea, the resilience and persistence of victims and civil society groups
ensured that the question of its past never faded from the national agenda. By relentlessly demanding truth and justice for atrocities that had taken place fifty years earlier, victims and civil society activists were rewarded with criminal prosecutions, truth commissions and reparations. At the same time, the international expansion of new accountability norms and human rights standards were brought to bear on the cases of East Timor, Cambodia and the Solomon Islands where amnesties were limited and side-stepped, paving the way for prosecutions to take place. Thus, in each of these cases, the pervasive ‘culture of impunity’ has been overcome, to varying degrees, by the ‘norm of accountability’. Here, as in other regions of the world, we are thus seeing the collapse of the ‘prosecute versus pardon’ dichotomy as states are pursuing both amnesties and prosecutions, concurrently or consecutively, as part of their transitional justice processes.

However, second, what we have also seen in the cases of the Asia-Pacific examined in this volume is that accountability has not always been exclusively conceived in terms of retributive justice in states wishing to overcome their cultures of impunity. Rather, several states employed restorative measures such as truth commissions and customary justice practices, in isolation or in combination with retributive measures. Although the demand for retribution and, in some cases even revenge, certainly exists in each of these transitional societies, in none of the cases examined in this volume was simple retribution pursued in isolation from other measures. Perhaps the closest to a purely retributive approach is the case of Cambodia where an old and anomalous amnesty was overcome to allow Case 002 to be heard before the ECCC. Even here, however, this characterisation is dubious: not only does the ECCC include provisions for providing reparative justice to the victims of the Khmer Rouge, but it has been accompanied by civil society-led restorative justice processes. Thus, only on the level of ‘official’ or ‘formal’ processes might the Cambodian case be conceived as an instance of retributive justice.

In a more obvious sense, the prevalence
of truth commissions in the Asia-Pacific illustrates the primacy of restorative justice in the region.
Commissions of inquiry have taken place in Sri Lanka, South Korea, the Solomon Islands, and East Timor, taking the form of truth commissions in the latter three cases. In each of these cases, purposeful decisions were made not to pursue criminal prosecutions for particular types or categories of crimes. What is more, the case of the Solomon Islands is particularly instructive in illustrating the strategic adoption of a truth commission as an official ‘third way’ between criminal prosecutions and local, unofficial reconciliation processes. Although each of these truth commissions was different in its mandate and function, all sought to reflect the on-the-ground realities of the states in which they operated and overtly aimed to contribute to the provision of restorative justice.

Finally, the cases of the Asia-Pacific clearly show that both top-down and bottom-up approaches are at work in the region. On one hand, truth commissions adopted in South Korea and Sri Lanka were purely bottom-up measures with almost no outside intervention. At the same time, customary and indigenous justice practices have been undertaken in the cases of the Solomon Islands, East Timor and Cambodia. In particular, indigenous approaches like
nahe biti
and the use of
kastom
have played an important role in addressing the past in the cases of East Timor and the Solomon Islands. What distinguishes these two types of grass-roots-led initiatives is that unlike local, customary and indigenous justice practices, the former have been transformed into official, state-sanctioned practices.

On the other hand, however, the cases of Cambodia, East Timor and the Solomon Islands have also seen the imposition of top-down measures. The ECCC in Cambodia as well as the truth commissions and trials undertaken in East Timor and the Solomon Islands have all been established with funding, expertise and ideas provided by outside actors. That said, in each of these cases, the ultimate success of the transitional justice mechanisms instituted rests in the hands of local powers and local people. In Cambodia the ECCC future depends, more or less, on how the ongoing power games between the Hun Sen government, civil society activists and the court itself is played out, whereas the success of the Solomon Islands’ TRC rests on local participation and how it is managed
by the government. Thus, in many cases, top-down and bottom-up ap-proaches to transitional justice have been mutually dependent upon one another and, in some instances, have even become fused.

The cases of the Asia-Pacific thus exhibit several key trends in the implementation of transitional justice practices which together bring into question and even serve to reorient the three debates that have marked the field to date. As many scholars and practitioners have noted, impunity for past human rights violations is certainly waning in the Asia-Pacific. With increasing numbers of states introducing transitional justice measures, achieving accountability for human rights crimes is more likely now than ever before in the region. Where accountability is concerned, however, the states of the Asia-Pacific have demonstrated some degree of reluctance in implementing backward-looking retributive measures, preferring instead to focus on the future-oriented restoration of post-transitional societies. Of the five elements of accountability we laid out in the Introduction, the notion of accountability as restoration was used most frequently in the cases examined, while accountability as retribution proved the least popular understanding of the term.

These trends suggest that the use of more synthetic and holistic accountability models is a feature of transitional justice in the Asia-Pacific. These models may include criminal prosecutions, amnesties and truth commissions, as Payne and Sikkink note, but may also include a range of other measures not ordinarily included in analyses of transitional justice processes. As the cases examined in this book reveal, holistic approaches to accountability often include new and innovative measures such as civil society involvement in criminal trials (as in the case of the ECCC in Cambodia), or much older traditional and customary practices (as in the cases of Aceh, East Timor and the Solomon Islands) in combination with trials and/or truth commissions. Moreover, in several cases, interesting local initiatives have taken place in the midst of and even been co-opted into national initiatives. Further research into the dynamics between local and national transitional justice initiatives is still required. To this end, the cases of Aceh, Indonesia and South
Korea might provide the basis for an interesting and fruitful comparative study examining the ways in which local processes can be hampered or obstructed by developments at the national level, and how local initiatives can drive the national accountability process.