31 tc, trials, or nothing policy options in democratic societies
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Third World Quarterly, Vol 20, No 6, pp 1109±1128, 1999
Truth commissions, trialsÐ or
nothing? Policy options in democratic transitions
ELIN SKAAR
ABSTRACT Gross human rights violations have constituted a hotly contested
national issue in many recent transitions from authoritarianism to democracy.This article analyses how newly elected democratic governments have dealt with
violations committed by of®cials of previous authoritarian regimes. Empirical
evidence from around 30 (mainly) Latin American and African countries
undergoing democratic transition after the mid-1970s shows that the govern-
ment’s choice of human rights policy largely depends on the relative strength of
the public’s demand for truth and justice and the outgoing regime’s demand for
amnesty and impunity. Policy choice will tend towards trials as the outgoing
regime becomes weaker and away from trials as the outgoing regime becomes
stronger. Truth commissions are the most likely outcome when the relativestrength of the con¯icting demands is roughly equal. Where human rights policy
deviates from predictions, the government always does less than expected. These
a rg um en ts h old true b ot h a t the ti me of reg im e ch ang e a nd d uri ng the
consolidation phase, as power dynamics often change over time.
The lea st unsatisf act ory cou rs e may we ll be:Do not prosecute,
Do not punish,
Do not forgive,
And above all,
Do not forget 1
The dilemma: to punish or to pardon?
In his guidelines for democratisers, Huntington aptly sums up the centraldilemma that many political leaders have been confronted with in transitions
from authoritarian to democratic rule. In situations where state of®cials of the
prev ious regim e hav e been re spon sibl e fo r m urdering, im prison ing , to rt urin g an d
`disappearing’ its citizens, should the new government listen to public demand
for disclosure of the truth and prosecution of the guilty? Or should it give in to
the outgoin g re gim e’ s dem an d for im pun it y fo r past crim es? By neglecting the
Elin Skaar is at the Department of Political Science, University of California, Los Angeles, Box 951472, Los
Angeles, CA 90095-1472, USA.
ISSN 0143-6597 Print; 1360-2241 Online/99/061109-20 ÓThird World Quarterly 1109
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former, the new democratic government may risk losing popular support and
legitimacy, as well as risk failing to build respect for the rule of law and
democratic institutions. By neglecting the latter, the government m ay run the risk
of provoking a violent military reaction and hence putting the fragile democracy
in potential danger. How, then, do political leaders respond to such con¯icting
demands?
Given past gross human rights violations, a democratic transition govern-
me nt’s thre e c ho ic es in th e ® eld o f h uma n rig hts are tru th co mmission s
(disclosing the facts about human rights violations), trials (prosecuting and
punishing the guilty), or nothing . This pape r tests the foll owing hyp oth esis:
The gover nm en t’s ch oic e of pol ic y dep en ds on the re la tive stre ng th of dem an ds
from the public and the outgoing regime, the choice tending towards trials as the
outgoing regime becomes weaker and towards nothing as the outgoing regime
becomes stronger, with truth comm issions being the most likely outcome when the
relative strength of the demands is roughly equal.
T his argum en t is in li ne with scholars on democratisation who argu e that the
typ e of reg im e tr an sition has an im pact on policy ch oi ce an d hence also on
democratic consolidation.2
Arguments such as that trials can only occur where
there has been total re gim e co llapse, or that truth co mm ission s are co mpro mise
solutions are common.
3
Yet these and similar rather intuitive statements have, tomy knowledge, not been rigorously tested. Samuel Huntington’s comprehensive
comparative study of how different countries have contended with the problem
of gross human rights violations offers valuable insight about individual cases,4
but no scholar has systematically tested common explanations for choice of
polic y across co untries. Sim ilar ly, th e literature on th e in te rim of®cial fact-
®nding bodies called truth commissions is also predominantly descriptive.
Pricilla Hayner and Daan Bronkhorst have documented the existence and work
of a large number of such truth commissions, but they offer no good analytical
explanation for their occurrence.5 This pap er seek s to ®ll th ese gaps. I investigate the ex isting univ erse of tr uth co mm ission s an d trials af te r the onset of th e th ird
wave of democratisation starting in the mid-1970s and offer arguments for when
we may expect one or both or none of these solutions as a government response
to past gro ss human ri ghts vio la tions.
Con¯icting demands and their solutions: a balance-of-power argument
Con¯icting demands
T ransitio n fr om au tho ritarian to dem ocratic ru le is ch aracterised by a hig h degree
of uncertainty, as the rules of the democratic `game’ are not yet ®xed.6
Elites
contend for power and in¯uence over the democratic rules, as well as for control
over policy making during the transition process and after the regime change.7
One particularly controversial policy issue in democratic transition has been how
to deal with gro ss hum an rights vio la tions comm itte d by the outgoin g au th ori-
taria n regime, be it a milita ry or perso nal dic ta tor sh ip, a one-pa rty reg im e (i e
comm unist regime), or a settler oligarchy. The intensity of the human rights
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issue depends on several factors, including the scope and nature of the abuses,
who the targeted victims were, and how well their interests are represented
organisationally.8
More important than the absolute numbers of victims (which
is always a matter of contention, as ®gures on human rights abuses are invariably
either in¯ated or de¯ated, depending on the interests of those counting),9 is the
typ e of respon se th at th e vio la tio ns pro voke. Human rig hts vio lations te nd to
mobilise different sectors of society with strong con¯icting interests, to which
the dem ocratic governm ent must respon d. T he governmen t’s an sw ers to
con¯icting demands may have a signi®cant impact on political stability, the
process of dem ocratisation, and, linked to th e la tte r, national reconcili ati on . T he
preferences of th e outgoin g re gim e, the pu bli c an d th e dem ocratic governm en t 10
may be summed up as follows:
1. All outgoing regimes responsible for gross human rights abuses have one
main interest in common: avoid prosecution of their of®cers and of®cials at
all costs and, if possible, avoid being given public blame for the violations.
2. The victims of human rights violations, their relatives and supporters, by
contrast, want retribution for the violations that have taken place under the
o ut goi ng reg im e. A t a m inim um , they wan t to ® nd out wh at actually
hap pen ed, that is, to establi sh th e facts regarding th e nature an d extent of the
violations. If possible, they would also like to have the perpetrators named
and, as a third step, to have the guilty put on trial and convicted. This maybe summed up as a public demand for `truth’ and `justice’, respectively.
11
3. The transitional democratic government’s primary interest is staying in
power; th at m eans surv iving the ®rst electoral perio d by crea ting an en viron -
ment of political stability. Second, the government must try to achieve the
long-term goals of democratic consolidation through establishing respect for
th e ru le of la w (hence dem onstrating th e willingne ss to bre ak with a
dictatorial past), building legitimacy and strengthening faith in the new
democratic institutions.12
Achieving national reconciliation is also an import-
ant long-term political objective.
We may further assume that all three actors want to preserve democracy.
Although democratically elected governments may be motivated to confront the
armed forces over hum an rights abuses and to reduce their power and privilege,
they are not wil ling to risk a co up to ac hiev e the se goals.13 The m ilit ary will only
take the co st of staging a co up if its reputa tion is severely at stake, tha t is, wh en
being threatened by trials. The worst possible scenario for the public is the
breakdown of democracy and a reversion to authoritarianism.
Policy options
T he dem ocratic governm en t has three pri ncipal policy ch oice s in dea ling with
con¯icting demands from the public and the outgoing regime.14
It may simply
do nothing (option 1). Second, it can establish a truth commission (option 2),
whose prime mandate is to give a comprehensive account of certain past gross
hum an rig hts violations, or vio lati ons of interna tion al human ita rian law, co mm it-
ted over a speci®c period of tim e. In retu rn fo r the ex ch an ge of in fo rm ation, tr uth
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ELIN SKAAR
commissions often offer a promise of partial or blanket amnesty.15
Since truth
comm issions have, with few exceptions, not had the judicial right to try the
culprits, the government’s third strategy is to instigate legal redress by prosecut-
ing individual people and meting out punishment (option 3).
T he democratic governm ent’s op ti mal choice would be one tha t allows it to
achieve both its short-term and long-term goals. However, where there is a
potential co n¯ict between the two, it has to priori tise political surv iva l. T he
possibi lity of rem aining in po wer dep en ds on whether the dem ocratic govern-
ment sides with the outgoing regime or the public in the contest over options 1,
2 and 3 and what reactions this may provoke. When deciding whom to side with,
the governm en t m ust assess the cred ibil ity of the dem an ds . The ab ility of either
the outg oing reg im e or th e public to impose sanctions on th e governmen t fo r not
complying with its demands is linked to the relative strength and unity of eachactor. To illustrate this intuitive point, a weak and disarrayed outgoing military
regime may be vehemently opposed to prosecution of its of®cers, but it may not
be in a position to impose any sanctions on the new government for instigating
tri als. Simil arly, if the outgo in g reg im e is non -m ilita ry an d it no lo nger wie lds
control over the military forces, it cannot threaten the new government with
force.
T he gov ernmen t m ust also co nte nd with what I here call `public opinion ’.
Public discontent does not pose an immediate direct threat to political stability
in the way that a coup does, but it may have serious effects on a government’s
long-term goals of building legitimacy and support for its policies. First, the
general public may punish the government electorally if discontented with its
polic ie s. Secon d, sp ecia l-in te re st org an isations, such as human rights gro ups,
may be small in numbers but high in leverage if they are able to draw unwanted
international attention to the human rights cause. Since most new democratic
governments are eager to send signals to the international community of
complying with `good governance’ procedures, a poor human rights record left
unattended may harm their reputation. In addition to moral condemnation, theinternational community m ay also pose threats of boycotts or economic sanc-
tions, such as the withd ra wal of lo an s or aid. The intensity of th e dem an ds from
these different public in tere st gro up s is therefor e im porta nt.
T o sum up th e policy pre ferences discu ssed ab ove, th e outgo ing regime will
always want inaction, will grudgingly accept truth commissions, and will accept
tri als only if it is too weak to resist. The pu bli c, by co ntrast, will always wa nt
tri als, wi ll grud ging ly accept tr uth co mm issions, but will acce pt in acti on to av oid
a military coup. The government is an autonomous actor which preserves itself
by responding to demands from the military and the public. However, the
government also has its own agenda, depending on its bias, which will make it
choose either inaction or an active human rights policy in the cases where it can
act autonomously. We expect the government to act autonomously only when
the m ilitary is weak, sinc e it alway s has to take th e po te ntial th reat of a co up
seriously. Based on these assumptions, we expect the policy outcomes presented
in Table 1.
In the rest of the paper, I present three arguments: ®rst, government policy is
made primarily in response to joint demands from the public and the outgoing
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TR UTH CO MM ISSI ON S, TRIALSÐOR NOTHING?
T ABLE 1
Expected policy outcomes
Outgoing regime
St rong W eak
Public Strong T ru th co mm issio ns T rials
demand W eak Nothing Unresolved
regime. Because the outgoing regime can only threaten the new government
when it wields control over the military forces, I shall henceforth refer to the
outgoing regime as `the military’. The most interesting situations occur where public dem an d for truth an d justic e is strong and th e m il itary’s dem an d for
impunity is strong. Assuming that both actors will back down on their claims in
o rd er to p re se rv e d emo crac y, we e xpe ct th e g ov ernme nt to p rese nt tru th
commissions as a compromise solution whereby both get a bit of what they
want. If public demand is strong and the military is weak, we expect trials.
Conversely, in the case of weak public demand and strong military demand, we
expect nothing, since the military can impose sanctions in the form of a coup.
In si tu ation s wh ere the go ve rn men t d oes n ot h av e to resp on d to ex te rn aldemands (the weak±weak scenario), the government is free to implement
whatever policy it wants. Since implementing an active policy of any kind is
always more costly to the government than following a nothing-policy option,
we would expect the government to do nothing also in this case.
My second argument is that the democratic government is more likely to err
on the side of overestimating rather than underestimating the claims of the
military relative to those of the public at the time of transition, since its own
survival is at stake if it makes the wrong assessment. This could happen if the
government challenges the outgoing regime with prosecution where the militaryis both willing and powerful enough to retaliate with a coup.
Fin ally, I argue th at power dynam ics may ch an ge over ti me an d op en up for
possibl e policy rev ersals. If we assume that th e co st of staging a co up inc reases
as democracy consolidates, we would expect to get the `nothing’ option early in
the tran sition pro cess and `truth co mmissio ns’ or `t rials’ la te r, gran ted th at public
demand remains constant or increases.
A cross-country analysis of human rights policies
In the following, I carry out a cross-country analysis aimed at testing the
arguments developed in the previous section. I ®rst give my criteria for case
selection, then proceed to classify the demands of the public and the outgoing
regime in each country as `strong’ or `weak’. Finally, I present empirical
evidence in support of my argument that the democratic government’s policy
choice depends on the relative strength of these demands.
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ELIN SKAAR
Case selection
About 50 countries have undergone democratic transition over the past three
decades, but only a third have dealt actively with the legacy of human rights
violations.16
Narrowing the focus of the analysis to democratic transition after the m id -19 70s pla ces the fo llowin g re stri ctions on m y crit eria for ca se sele ction.
First, only tru th co mm issions set up to inv estigate ab uses carried out by the
previou s autho ritarian regime are included. Hence, committees set up by a
government to investigate human rights abuses undertaken by or under its own
regimeÐso-called investigatory bodies or committeesÐare excluded. This is an
important distinction that both Hayner and Bronkhorst failed to make in their
broad com parative studies of truth commissions.17
Second, I do not address trials
during transitions instigated for purposes other than that of prosecuting people
for gross human rights violations. Hence, I exclude from my analysis the
so-called Iustration processes (also called `cleansing’, meaning purging from the
public sector th ose who served in re pressive regimes) in stig ated in E aste rn
European countries after the demise of communism in the late 1980s and, very
recently, in South K orea.18
I also exclude the trials of those plotting to overthrow
Gorbachev in 1994. Table 2 displays an exhaustive list of the policy choices of
tra nsition al governmen ts that hav e either set up truth co mmissio ns or held trials
®tting my working de®nitions.19
As `negative’ or `control’ cases I have included
a selection of countries where either (i) there has been a demand for truth and justi ce but the governm ent has re sp onded neg atively, or (ii) th e tra nsition al
context would have led us to expect public demand for dealing with the past but
this has not happe ne d. Note that most co untries pursuin g an activ e human ri ghts
polic y have been either L atin American or Afr ican Ð reasons for which I will not
discuss in this paper. Both national governments and national or international
non-g overnmen ta l org an isations hav e insti gated truth co mmissio ns or trials.
De®ning and classifying the actors and their choices
T o what ex te nt ca n th e polic y ch oic es outlined in T able 2 be ac coun te d for as
a government response to the relative credibility of con¯icting demands from the
public an d th e outgo ing re gim e? And how are the se co n¯ic ting dem ands
registered and measured? Early transition theory, based primarily on the Latin
American experiences, argued that the slower and more controlled the transition,
the stro nger th e barg aining power of th e outgoing regime vis-aÁ-vis the incoming
regime.20
T he recen t tran sition al ex perie nces of Eastern E uro pe an d Afric a hav e
led scholars to focus more on the distinction between a `top-down’ versus a
`bottom-up’ approach.21
The ce ntral poin t is to what ex tent th e outg oing regime
is in control of the transition process and hence can dictate terms to prevent
prosecu tion for hum an rig hts violations.
Based on the arguments of this literature, I have broadly ordered the types of
tra nsition in to co llapse, pacte d, an d peace ag re em ents, dep en ding on (i ) the
extent of negotiation that took place and (ii) whether international actors
b ro ke red the p ea ce o r n ot.22
I h av e u sed information a bo ut wh at typ e o f
tra nsition th e coun tr ies in T ab le 2 hav e un dergone as a basis fo r classify in g the
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TR UTH CO MM ISSI ON S, TRIALSÐOR NOTHING?
T ABLE 2
Truth commissions, trials, both, or nothing?
Sp on sor
Truth
Trials Both Nothing commissions
N ati on al P hi lli pp in es (1 98 6) G ree ce ( 19 7 5± 76 ) B ol iv ia ( 19 82 )/ (1 98 6± 93 ) S ou th Ko re a*
g ove rn men t Ugan da ( 19 86 ) R wa nd a ( 19 94 ±) A rgen tin a ( 19 83 )/(1 98 5) Co lom bia*
Chad (1990) Malawi (1995) E ast Germ any (1992±)/ Indonesia*
Chile (1990) (1992±) Namibia*
Haiti (1995) Ethiopia (1992)/(1997±) Angola**
South Africa (1995) Mozambique**
Eastern European
countries**
Non-gov t Brazil (1985) Yugoslav (1994±) Rwanda (1993 )/(199 4±) Cam bo dia*or Uruguay (1985)
international El Salvador (1991)
Guatemala (1996)
Notes: The y ear refers to when the truth commission was established or when trials were held. A dash me ans that
the pr ocess is on go ing. Rw anda appe ars t wi ce in th e tabl e b ecause tr ials have been in sti ga ted bo th by the na tio nal
government and the international war crimes tribunal set up by the UN. The ®rst convictions in both Rwandan
trib unals to ok pl ace in 19 98. Many more are expected.
*There have been calls for truth commissions in South Korea and Honduras (see PB Hayner, `Fifteen truth
commissionsÐ1974 to 1994; a comparative study’, Human Rights Quarterly, 16(4), 1994, p 605); Rwanda (seeA Froyland, AC Nilsson & A Suhrke, `Rwanda: neither justice nor peace’, in BA Andreassen & E Skaar (eds),
Reconciliation or Justice? Protecting Human Rights Through Truth Commissions and Trials (in Norwegian),Oslo:
Cappelen Akademisk Forlag, 1998, p 302); Namibia (see N Kritz (ed), Transitional Justice. How Emerging
Democracies Reckon With Former Regimes, Vol II, Washington, DC: United States Institute of Peace Press, 1995,
p xi ); Indo ne sia (The Economist , 6±12 June 1998), and Cambodia (New York Times, 13 January 1999). The
governments of these countries have either not yet of®cially responded or have responded negatively.
**No formal claims for truth commissions or trials have been made by the public in these countries.
So urces: D Bronkhorst, Truth and Reconciliation. Obstacles and Opportunities for Human Rights, Amsterdam:
Amn esty International Dutch Section, 1995; PB Hayner, `Fifteen truth commissions±1974 to 1994: a com parative
study’, Human Rights Quarterly, 16(4), 1994, pp 597± 655; M Kaye, `The role of truth commissions in the search
for justice, reconciliation and democratisation: the Salvadoran and Honduran cases’, Journal of Latin American
St ud ies, 29(3), 1997, pp 693±716; N Kritz (ed), Transitional Justice. How Emerging Democracies Reckon With
Former R egimes, Vols I±III, Washington, DC: United States Institute of Peace Press, 1995; JA McAdams (ed),
Transitional Justice and the R ule of Law in New Democracies, N otre Dame, IN: University of Notre Dame Press,
1997.
outgoing regime as `defeated’, `weak’ or `strong’. I have classi®ed the outgoing
regime as `defeated’ (D) in transitions by collapse, that is where the outgoing
regime has suffered defeat in war (in the case of military regimes), or been
forced to ¯ee the country (in the case of civilian dictatorships), or has been
severely discredited for other reasons. In the rare cases of transition by `collapse’
where the outgoing regime is reported in the literature to have remained party
to the bargaini ng pro ce ss, in spite of ha ving lost m uch of it s le gitimacy, I hav e
classi®ed it as `weak’ (W). Note that a defeated military poses no initial threat
to the new dem ocratic gove rn men t, whereas a weak mili ta ry may reg ain stre ngth
over time.
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I ha ve g iv en the o utgo ing reg ime the lab el `stro ng ’ (S ) in two ty pe s o f
scenarios: ®rst, in transitions that have been gradual, controlled, and authori-
taria n-init iated, th at is, tran sitio ns where there has been a relatively fa ir power
balance between the incoming and the outgoing regime. In these so-called pacted
tra nsition s, the outg oing reg im e is ex pected to be co herent, relatively uni® ed ,
and thus have a substantial say in the proceedings of the transition process.
Second, I have classi®ed the outgoing regime as `strong’ (S) in cases where an
international broker has negotiated a peace settlement after a prolonged civil war
and the outgoing regime has been party to the bargaining process.
T he rela tive strength or weakn ess of `p ublic dem an d’ for tru th an d ju stice is
tri ckier to assess, as it is not nec essaril y link ed to the typ e of tran sition .
Moreover, the `public’ encompasses a wide array of individual actors who are
quite likely to have internally con¯icting interests. The part of the population supporting the outgoing regime most probably prefers no action to be taken in
the ®eld of human righ ts. Specia l inte re st gro ups, such as non-governm ental
hum an ri gh ts or gan isations or oth er civil society org an isations pushi ng fo r either
a truth commission or legal redress, or both, often represent the interests of the
victims. The relative strength of these con¯icting demands forms a continuum
and is obviously hard to quantify. Based on the reading of various secondary
sources and other scholars’ assessments of each of the countries in Table 2, I
hav e classi®ed `p ubli c dem an d’ as `stro ng’ (S) if th e literatu re re po rt s it as
hav in g pla ced su bsta ntial pressu re on th e go vernmen t to in it iate hum an ri ghts
polic ie s. T his is m ost typic ally record ed with reference to the acti viti es of human
rights organisations (often with reported links to the international community, or
to domestic institutio ns su ch as the Catho lic Church or polit ical parties), but also
to ralli es, new sp aper writing s, dem onstrati on s an d public opinion poll s (p re-
sumably re¯ecting the preferences of the voters).
Conversely, public demand is recorded as `weak’ (W) if no apparent credible
pressu re fo r truth an d/o r justice has be en placed on the governm en t. T his may
be because (i) the public simply does not want such policies to be enacted, or (ii) the public wants such policies, but fails to put pressure on the government
out of fear of retribution, or (iii) the public is too disorganised to make its
demands effective. The (largely subjective) assessment of this kind of infor-
mation is presented in Table 3.23
Linking strength to strategy
I have next used the information of the relativeÐcredibleÐstrength of public
demand and that of the outgoing regime reported in Table 3 to determine to what
extent actual policy choices concur with predictions made in Table 1 earlier in
this pap er. Based on th e rela tive stre ngth of public versu s m ilita ry dem and alon e,
T ab le 4 sh ow s that our model co rrectly pre dicts polic y outcomes fo r a large
num ber of coun tries that hav e ch osen truth co m missions, trials or no th ing in an
attempt to deal with the legacy of gross human rights violations. Deviant cases
are noted in italics.
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Evidence con®rming predictions
In line with our predictions, Uruguay, Brazil, Chile, South Africa, El Salvador,
Guatemala and Haiti chose truth commissions as a compromise solution. The
®rst ® ve countries had elite-initiated transitions where the outgoing regimes w ere
in a position to dictate the terms of their departure by insisting on amnesty laws.
T he tran siti ons in El Salva do r an d Guatem ala were facilitated by UN pe ace
agreements after prolonged civil war. As part of the peace accords, the new
democratic governments agreed to set up truth commissions, accompanied by
amnesty laws, in response to vocal demand from both human rights groups and
the publ ic writ large.24
The tran sition in Haiti resulted fro m a ne go tia te d pe ace
settlement combined with US military intervention, where the Haitian outgoing
regime’s demand for impunity was secured through an amnesty law.25
Correct predictions were also made for several countries staging trials, either
separately (Greece, Yugoslavia and Malawi), or in combination with truth
comm issions (Bolivia, Argentina, East Germany, Ethiopia and Rwanda). All
these co untries had ou tg oin g regimes th at were either defeated in in terna l or
external war (Yugoslavia, Argentina, Ethiopia and Rwanda) or that were
severely discredited for other reasons (Greece, Malawi, Bolivia and East Ger-
many). This supports conventional wisdom that trials are only likely to be held
in cases of transition by collapse.
Fin ally, co rrect predic ti ons were mad e reg arding noth in g-policy optio ns in
Angola and Mozambique, on the one hand, and the Eastern European countries
(except East Germany), on the other hand. Angola and Mozambique illustrate
the spec ia l nature of interna ti onally brokered peace sett lem ents after pro longed
civil war. The outgoing regimes in both countries maintained a high degree of
control in the negotiation process and, importantly, control over the military
forces. The public has been too exhausted after years of civil war (newly
erupted again in Angola) to place any credible demands for truth and justice on
the cu rr ent governmen ts.26
T he United Nations has not insisted on tr uth comm is-sions or trials, fearing that this would upset the fragile political balance. This
contrasts with the previously mentioned UN negotiated settlements in El
Salvador and Guatemala, where the bargaining parties agreed to set up truth
commissions.
T he Eastern Europ ean co untrie s (a gain wit h the ex ception of East Germ any)
presen t a different an d interesting gro up of cases. T he y had relatively stro ng
outgoing regimes, as a result of controlled transitions from communism, com-
bined with weak public demand (save Romania, where the Ceausescus were
forced from power and summarily executed after ad hoc trials). As expected in
a weak±strong scenario, the new democratic governments did nothing. However,
an intriguing question presents itself: why have these countries, with histories
tainted by m assive an d sy stematic hum an rights violations an d organised civil
societies, not had a substantial public demand for truth and justice? Several
scholars have convincingly argued that this may be because a sizeable proportion
of citizens in these countries has been directly or indirectly associated with the
outgoing communist regimes, and therefore has had its own interests to protect.
T he issue of co lla bo ratio n may thu s offer at le ast a partial ex pla nation fo r why
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1118
T A B L E 3
P o l i c y o p t i o n s i n a t r a n s i t i o n a l s e t t i n g : l o
o k i n g f o r s y s t e m a t i c p a t t e r n s
C o u n t r y
Y e a r
T y p e o f
O u t g o i n g
P u b l i c
S p o n s o r
P o l i c y
F i t m o d e l
t r a n s i t i o n
r
e g i m e
d e m a n d
S
W D
S
W
N a
I n t
T
T C
N
Y e s
N o
G r e e c e
1 9 7 4
C o l l a p s e ( r p )
D
X
X
X
X
M a l a w i
1 9 9 4
C o l l a p s e ( R E )
D
X
X
X
X
Y u g o s l a v i a
1 9 9 4
C o l l a p s e
D
X
X
X
X
B o l i v i a
1 9 8 2
C o l l a p s e ( t p )
W
X
X
X
N R
X
A r g e n t i n a
1 9 8 3
C o l l a p s e ( r p )
D
X
X
X
X
X
E G e r m a n y
1 9 9 0
C o l l a p s e ( r p )
W
X
X
X
X
X
E t h i o p i a
1 9 9 1
C o l l a p s e ( N C )
D
X
X
X
X
X
R w a n d a
1 9 9 4
C o l l a p s e ( R E )
D
X
X
X
X
X
X
P h i l i p p
1 9 8 6
C o l l a p s e ( r p )
W
X
X
N R
X
U g a n d a
1 9 8 6
C o l l a p s e ( N C )
D
X
X
X
X
C h a d
1 9 9 0
C o l l a p s e ( N C )
D
X
X
X
X
U r u g u a y
1 9 8 4
P a c t e d ( t p )
X
X
X
X
X
B r a z i l
1 9 8 5
P a c t e d ( t f )
X
X
X
X
X
C h i l e
1 9 9 0
P a c t e d ( t f )
X
X
X
X
X
S A f r i c a
1 9 9 4
P a c t e d ( t p )
X
X
X
X
X
E l S a l v
1 9 9 2
P e a c e a g r ( t p )
X
X
X
X
X
G u a t e m a l a
1 9 9 6
P e a c e a g r ( t f )
X
X
X
X
X
H a i t i
1 9 9 4
P e a c e a g r
X
X
X
N R
X
N a m i b i a
1 9 9 0
P e a c e a g r ( P A )
X
X
X
X
X
C a m b o d i a
1 9 9 1
P e a c e a g r
X
X
X
X
X
A n g o l a
1 9 9 2
P e a c e a g r ( P A )
X
X
X
X
X
M o z a m b
1 9 9 2
P e a c e a g r ( P A )
X
X
X
X
X
S K o r e a
1 9 9 2
P a c t e d ( t p )
X
X
X
X
X
I n d o n e s i a
1 9 9 8
P a c t e d
X
X
X
X
X
B u l g a r i a
1 9 8 9
P a c t e d ( t f )
X
X
X
X
X
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1119
C z e c h o s l
1 9 8 9
P a c t e d ( t p )
X
X
X
X
X
P o l a n d
1 9 8 9
P a c t e d ( t p )
X
X
X
X
X
H u n g a r y
1 9 9 0
P a c t e d ( t f )
X
X
X
X
X
R o m a n i a
1 9 8 9
C o l l a p s e ( r p )
W
X
X
X
X
N o t e s : T h e d a t e s r e f e r t o t h e t i m e o f r e g i m e c h a n g e . S 5
s t r o n g , W 5
w e a k , D 5
d e f e a t e d , N a 5
n a t i o n a l , I n t 5 i n t e r n a t i o n a l T 5
t r i a l s , T C 5
t r u t h c o m m
i s s i o n ,
N 5
n o t h i n g .
I h a v e b r o a d l y c l a s s i ® e d t h e t y p e s o f t r a n s i t i o n i n t o c o l l a p s e , p a c t e d a n d p e a c e a g r e e m e n t s , d e p e n d i n g o n ( i ) t h e e x t e n t o f n e g o t i a t i o n t h a t t o o k p l a c e a n d ( i i )
w h e t h e r i n t e r n a t i o n a l a
c t o r s b r o k e r e d t h e p e a c e o r n o t . W h e r e a v a i l a b l e , H u n t i n g t o n ’ s ( 1 9 9 1 ) c l a s s i ® c a t i o n s ( t r a n s f o r m a t i o n ( t f ) , t r a n s p l a c e m e n t ( t p ) a n d
r e p l a c e m e n t ( r p ) ) a r e n o t e d i n p a r e n t h e s e s . F o r t h e A f r i c a n c a s e s , B r a t t o n a n d v a n d e
W a l l e ’ s ( 1 9 9 8 ) c l a s s i ® c a t i o n s ( r a p i d e l e c t i o n ( R E ) , n a t i o n a l c o
n g r e s s
( N C ) a n d p a c t ( P A ) ) a r
e n o t e d i n p a r e n t h e s e s , w h e r e a v a i l a b l e .
S o u r c e : C A l d e n & M S i m p s o n , ` M o z a m b i q u e : a d e l i c
a t e p e a c e ’ , J o u r n a l o f M o d e r n A f r i c a n S t u d i e s , 3 1 ( 1 ) , 1 9 9 3 , p p
1 0 9 ± 1 3 0 ; B A A n d r e a s s e n & E
S k a a r
( e d s ) ,
R e c o n c i l i a t i o n o r
J u s t i c e ? P r o t e c t i n g H u m a n R i g
h t s T h r o u g h T r u t h C o m m i s s i o n s a n d T r i a l s ( i n N o r w e g i a n ) , O s l o : C a p p e l e n A k a d e m i s k F o r l a g
, 1 9 9 8 ;
M B r a t t o n & N v a n d e W a l l e ,
D e m o c r a t i c E x p e r i m e n t s
i n A f r i c a : R e g i m e T r a n s i t i o n s i n C o m p a r a t i v e P e r s p e c t i v e , C a
m b r i d g e : C a m b r i d g e U n i v e r s i t y
P r e s s ,
1 9 9 7 ; D B r o n k h o r s t , T r u t h a n d R e c o n c i l i a t i o n .
O b s t a c l
e s a n d O p p o r t u n i t i e s f o r H u m a n R i g h t s , A m s t e r d a m : A m n e s t y
I n t e r n a t i o n a l D u t c h S e c t i o n , 1 9
9 5 ; P B
H a y n e r , ` F i f t e e n t r u t h c o m m i s s i o n s Ð 1 9 7 4 t o 1 9 9 4 : a c o
m p a r a t i v e s t u d y ’ , H u m a n R i g h t s Q u a r t e r l y , 1 6 ( 4 ) , 1 9 9 4 , p p 5 9 7
± 6 5 5 ; S P H u n t i n g t o n , T
h e T h i r d
W a v e :
D e m o c r a t i z a t i o n i n t h e L a t e T w e n t i e t h C e n t u r y , N o r m a n & L o n d o n : C a m b r i d g e U n i v e r s i t y P r e s s , 1 9 9 1 ; T L K a r l & P C S
c h m i t t e r , ` M o d e s o f t r a n s i t i o n i n L a t i n
A m e r i c a , S o u t h e r n a n d
E a s t e r n E u r o p e ’ , I n t e r n a t i o n a l S o c i a l S c i e n c e J o u r n a l , 1 2 8 , 1 9 9 1 , p p 2 6 9 ± 2 8 9 ; M K a y e , ` T h e r o l e o f t r u t h c o m m i s s i o n s i n t h e
s e a r c h
f o r j u s t i c e , r e c o n c i l i a t i o n a n d d e m o c r a t i s a t i o n : t h e S a l v a d o r a n a n d H o n d u r a n c a s e s ’ , J o u r n a l o f L a t i n A m e r i c a n S t u d i e s , 2 9 ( 3 ) , 1 9 9 7 , p p 6 9 3 ± 7 1 6 ; R L e M a r c h a n d ,
` M a n a g i n g t r a n s i t i o n a n
a r c h i e s : R w a n d a , B u r u n d i , a n d S o u t h A f r i c a i n c o m p a r a t i v e p e r s p e c t i v e ’ , J o u r n a l o f M o d e r n A f r
i c a n S t u d i e s , 3 2 ( 4 ) , 1 9 9 4 , p p 5 8
1 ± 6 0 4 ;
J A M c A d a m s ( e d ) , T r a n
s i t i o n a l J u s t i c e a n d t h e R u l e o f L a w i n N e w D e m o c r a c i e s , N o t r e
D a m e , I N : U n i v e r s i t y o f N o t r e D a m e P r e s s , 1 9 9 7 ; W F S M i l e s , ` T r a g i c
t r a d e o f f s : d e m o c r a c y a n
d s e c u r i t y i n C h a d ’ , J o u r n a l o f
M o d e r n A f r i c a n S t u d i e s , 3 3 ( 1 ) ,
1 9 9 5 , p p 5 3 ± 6 5 ; I P S t o t z k y , S i l e n c i n g t h e G u n s i n H a i t i ,
T h e P
r o m i s e
o f D e l i b e r a t i v e D e m o c r a c y , C h i c a g o . U n i v e r s i t y o f C h i c a g o P r e s s , 1 9 9 7 ; J Z a l a q u e t t , ` B
a l a n c i n g t h e e t h i c a l i m p e r a t i v e s a n d p o l i t i c a l c o n s t r a i n t s : t h e d i l e m m a
o f n e w d e m o c r a c i e s c o n f r o n t i n g p a s t h u m a n r i g h t s ’ , H
a s t i n g s L a w J o u r n a l , 4 3 ( 6 ) , 1 9
9 2 , p p 1 4 2 6 ± 1 4 3 2 .
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T ABLE 4
Actual policy outcomes
Military demand
St ron g W eak
Strong T rut h c om m issi on s T ri al s
Ur ug uay (T C) Greece (T )
Brazil (TC) Yugoslavia (T)
Chile (TC) Malawi (T)
So uth A fri ca (T C) Bol iv ia (T1 TC )
E l Salvador (T C) Argentina (T1 TC )
Guatemala (T C) E ast Germ any (T1 TC)
Haiti (TC) Ethiopia (T1 TC)
Rw anda (T 1 TC )
Namibia (N)
Cambodia (N) The Philippines (TC)
So uth Korea (N) Ugan da (TC)
Indonesia (N) Chad (TC)
Weak Nothing Nothing
Angola (N) Romania (N)
Mozambique (N)
Bulgaria (N)
Czechoslovakia (N)
Poland (N)
Hungary (N)
Notes: T 5 tr ials, TC5 trut h commissi ons, N 5 no th ing. Countr ies in italic s are `d eviant’
cases.
Sourc e: Information synthesised from Table 3.
justi ce in E astern Euro pe has been sought th ro ugh th e pro cess of lu stration rather
than th rou gh pro secu ti on fo r hum an rights violation s.27
Deviant cases and systematic patterns
Although there is a strong link between the relative strength of con¯icting
demands and policy outcomes, there are several cases that don’t ®t our model.
T wo groups of co untrie s have done less in the ®eld of human rights than our
model predicts: those that did nothing, where truth commissions were expected
(Namibia, Cambodia, South Korea and Indonesia) and those that only estab-
lished truth commissions where trials were expected (the Philippines, Uganda
and Chad). What may account for this? As always, the devil is in the details. By
takin g a closer look at the se tr an siti ons, th ree broad alternative explan atio ns
presen t them selves. T he ®rst is th e lack of ex ecutive co m m itmen t to the process
of human rights. In Uganda, Namibia, South Korea and Indonesia, the demo-
cratic governments have continued to court strong ties to the outgoing regime or
the mil it ary afte r th e tr an siti on . Afte r oustin g his milita ry predecesso r, Pre sident
Museveni of Uganda established a truth commission, reportedly primarily in
response to donors pressuring him to address the human rights situation in the
country. The commission released its report only eight years later, in spite of
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hea vy public dem an d. Tri als were nev er on Museven i’s poli tical agenda.28
President Nujoma of Namibia is known to have strong af®liations with the South
West African People’s Organisation (SWAPO), which has been accused of many
of the atrocities committed during the civil war with the South African army.
T his may ex pla in Nu jo m a’s relu ctance to respo nd fav ourably to pub li c dem an d
for truth and justice.29
The election of civilian pre siden t Kim You ng Sam in 1992
marked an important democratic turning point in Korean politics but there was
no ap paren t in iti ative on the part of th e ne w dem ocratic gover nmen t to inv esti-
gate human rights abuses or instigate trials. Finally, the stepping down of
long-term dictator Suharto in Indonesia after sustained public pressure in 1998
marked an important democratic opening in Indonesian politics. However, his
appointed successor, President Habibie, has strong interests in preserving his
links to the military. In sum, the executives in these four countries have had a perso nal interest in favouring th e mili ta ry’s dem an d fo r impunity over the
public’s dem an d fo r truth an d justice.
A second potential explanation for the apparent lack of government initiative
in the human rights ®eld is the continued threat of military opposition to the
democratic government after the transition. For instance, in Cambodia the
Khmer Rouge (allegedly responsible for killing more then two million Cambodi-
ans between 1975±78) was included in the peace negotiations brokered by the
UN in 1992, an d man ag ed to secure th eir im punity.30
The su rv ival of the Kh m er
Rouge leadership until 1998 has pre sented a dorman t, th oug h co ns tant, th re at to
the new gov ernmen t. T he situation in the Philippines was differen t, yet some-
what similar. The Aquino government taking over after the collapse of the
Marcos regime in 1986 was initially openly in favour of dealing with the legacy
of gross human rights violations. The government appointed a truth commission,
but it abandoned its work halfway through and never issued a report. The
Aquino government faced severe opposition and three successive tentative
military coups right after coming to power and judged it as politically unfeasible
to push an y further fo r tru th or tria ls.31
T hese tw o ex am ples suggest th at, where the m ilita ry reta in s a strong presence in politic s, the democratic governm en t
must tread carefully.
A third and ®nal explanation for why some democratic governments have
done less than expected to resolve the legacy of past human rights violations is
simply a lack of functioning political institutions. Chad after the overthrow of
HabreÂ’s regime in 1990 is a good example. T he democratic government set up
a truth co mm ission to inv estigate abuses carried out under H abreÂ’s despotic thr ee
decade-long rulership, and the new president formally pledged to respect
democracy and human rights. However, human rights violations have continued
on a large scale after the return to electoral democracy. Given the lack of
presiden tial co ntrol over the arm y, co mbined with a poor ju dic ia ry, the ab sence
of the rule of law, internal factions and ethnic con¯ict, it is hardly surprising that
tri als have not been held in Ch ad .32
T o su m up, there are a number of cases wh ere the governmen t did less than
expected in a given balance-of-power context, for reasons such as strong
executive ties to the outgoing regime, a continued looming military presence, or
polit ical ch ao s. On e im porta nt thin g to note is that no country did more in the
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®eld of human rights than predicted. There are, in fact, no empirical examples
of truth commissions or trials in countries where public demand for truth and
justi ce has bee n wea k, ev en where th e out go in g re gime had been defeated. T his
systematic pattern displayed by the deviant cases supports my second argument
that a dem ocratic governm en t is more likely to err on th e sid e of doing to o litt le
rather than too much with respect to the politically contested issue of past human
rights violations.
May human rights policies change over time?
So far I have dealt with the policy options chosen by democratic governments
at the time of regime transition, assuming that the power balance is static. In the
following I argue that negotiation or bargaining between the government and theoutgoing regime, on the one hand, and between the government and the public,
on the other, may usefully be thought of as taking place in three distinct phases
of the democratisation process: the liberalisation/democratisation phase (t 2 1),
the tim e of re gime ch an ge (t 1 1), and the democratic consolidation phase
(t 1 2). We may expect policy reversals where the relative balance of con¯icting
demands from the public and the outgoing regime changes over time. Table 5
shows when the main bargaining over human rights policies took place in each
country. Countries that either have had, or are expected to have, policy reversals
in the ®eld of human rights are indicated in bold type.
T hree patterns are worth no ting . First, no trials were initially held in co untries
where the transition process included heavy elements of negotiation and bargain-
ing in the period before the actual regime change (t 2 1), de®ned as gradual or
pacted transitions. This is in accordance with our prediction that trials are held
only in situations of a collapsed or weak outgoing regime. Truth commissions,
by contrast, appear most frequently as sole solutions precisely in the cases where
there is a heavy elem ent of pre -reg im e tran sition bar gaining . He nce the y are
appropriately considered a `compromise solution’. Second, where the main bargaining takes place at the time of regime change (t 1 1), the range of policy
solutions is m uch w ider. Third, we note that to date at least four countries (Chile,
Bolivia, Argentina and South Africa) have had policy reversals in the ®eld of
hum an rights in the co nsoli dation phase (t 1 2) .
Argentina is the only case where the government initiated a human rights
polic y it was forc ed to back down on. Alf onsin’s fam ous tria ls an d conv ic ti on
of seven Argentinean generals in 1985 were reversed when Menem came to
power in 1990 an d issued sw eeping pardonsÐ afte r th re e unsuccessful milita ry
revolts. Thus, the military junta, initially emerging weak and discredited after its
defeat in the Falklands War, was able to close ranks, regain strength and present
a real threat to the government. This eventually led to a policy reversal in favour
of the military.
For Bolivia an d Chile, th e situati on has been ex actly the oppo site. In Bo li via,
the initi al am nesty law passed on tran siti on wh ich prote cted the outg oing
military regime from prosecution was set aside when the new democratic
government instigated a series of trials in 1985Ðthe most wide-reaching process
of legal justice in any Latin American country. In Chile, ex-dictator Augusto
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TR UTH CO MM ISSI ON S, TRIALSÐOR NOTHING?
T ABLE 5
Bargaining over human rights in transitions to democracy
t 2 1 t 1 1 t 1 2
Country Policy Country Policy Country Policy
Ur ugua y 19 85 TC Greece 19 75 T
Brazil 1985 TC Yugoslavia 1992 T
Chile 1990 TC Malawi 1995 T Chile 1995/1999 T/T?
El Salvador 1992 TC Bolivia 1982 T 1 TC Bolivia 1989/1999 T/T?
HaiÂti 1995 TC Argentina 1983 T 1 TC Argent 1989/1999 No T/T?
S Africa 1995 TC Ethiopia 92/97 T 1 TC S Africa 1998/1999 T/T?
Guatemala 1996 TC East Germ 92/98 T 1 TC
Rwanda 94 /98 T 1 TC
Phillipp 1986 TC
Uganda 19 86 TC
Chad 1990 TC
Namibia 1990 N
Cambodia 1991 N Cambodia 1999 TC/T?
Angola 1992 N
Mozamb 1992 N
S Korea 1992 N
Indonesia 1998 N Indonesia 1999 TC/T?
Bulgaria 1989 N
Czechosl 1989 N
Poland 1989 N
Hungary 1989 N
Romania 1989 N
Notes: T he dates refer to when a truth commission was established or trials held. For the countries with no p olicy,
the da tes refer to wh en regi me change came abou t.
So urces: Information synthesised from other tables in this paper.
Pinochet initially succeeded in securing guarantees for upholding his 1978
Amnesty Law during negotiations with the incoming Aylwin government in 1989. However, after years of public pressure on the democratic government, the
amnesty law was put to shame with the trials of retired general Manuel Contreras
and former chief of the secret police and second in command, General Pedro
Espinoza, in 1995. A public opinion survey taken in July of the same year
showed that 65.8% of Chileans polled agreed that the generals should serve
tim e.33
More cases are currently under investigation in Chile. This indicates that
the pow er balance has shifte d in fa vour of the public , an d th at the mili tary no
longer considers the protection of its interests dear enough to threaten the
government.
Recen t dev elopm en t ind icates fu rt her ch an ges in fav our of incre ase d ju stic e in
these th ree co untrie s. If Pinoch et is asked to stan d trial on ch arges of murder an d
genocide while heading the military junta before 1989, it will be the ®rst time
in history that a former dictator has been arrested outside his country to account
for past misdeeds. This will set a new precedent in international human rights
law. Partly encouraged by Pinochet’s arrest in England in October 1998, there
has been a recen t push fo r opening tr ials ag ainst fo rm er generals fo r the
abduction and kidnapping of babies during the `dirty war’ in Argentina. This
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ELIN SKAAR
new init ia tive on th e part of th e Arg en ti nean co urtsÐ rep orted ly in re sp onse to
sustained public pressureÐindicates yet another shift in the human rights policy.
Similarly, in Bolivia, there have been threats of opening up trials against former
army general and dictator and present head of state, President Hugo Banzer.34
Note also that the amnesty law in South Africa, which is based on individual
rather than blanket amnesty, will not cover all cases of human rights violations.
Several trials have already been held, and many more are expected to take place
in the near future.
Other democratic governments that have thus far been reluctant to embark on
a quest for truth and justice are currently in the process of considering possible
action in the ®eld of human rights. Recent public demand for truth and justice
in Indonesia, particularly manifested through student demonstrations, and in-
tensi®ed after the June 199 9 elec tio ns, mig ht open up the possibility of a tr uthcommission or trials or both. In Cambodia, the death of Khmer Rouge’s prime
and feared leader, Pol P ot, in 1998 has encouraged public pressure for trials, thus
forcing the present democratic government to deal with the past many years into
the process of de mocratic co nsolidation.35
T he governmen t re cently asked the
UN fo r help in drafting a la w th at would allow a tribunal to be set up
domestically, with foreign judges and lawyers working alongside their Cambo-
dian counterparts to prosecute the remaining Khmer Rouge leaders. 36
All this shows that the power dynamics set at the time of transition are not
perm anently ®xed . Su stained or in creased dem an d fo r tr uth an d ju stice from
e ither the p ub lic a nd/o r fro m a relativ ely sma ll n umbe r o f h uma n rig hts
organisations and lawyers groups, may successfully draw unwanted international
attention and threats of sanctions, which may encourage or pressure an initially
unwilling democratic government to implement more pro-human rights policies.
Conclusions and suggestions for future research
In this paper I have presented three arguments to account for the policy choicesmade by democratic governments in an effort to deal with the legacy of gross
hum an rig hts violations after th e transitio n to dem ocracy. First, I hav e argued
that th e go vernmen t’ s choice of polic y depends on th e rela tive stre ngth of
credible demand for truth and justice from the public and the demand for
amnesty and impunity from the outgoing regime. Second, I have argued that,
because the newly elected democratic government is primarily concerned with
polit ical su rv ival, it is pruden t in its policy ch oic es an d will do le ss rathe r th an
more to resolve the problem of human rights violations. A worst-case scenario
for b oth the d emocratic g ov ern men t a nd th e p ub lic wo uld b e d emo cratic
breakdown in form of a coup. Hence both sides may be willing to back down
on their demands in order to preserve democracy. Third, I have argued that, as
democracy solidi®es over time, the democratic government may gradually
become willing to implement stronger measures in the human rights ®eld. This,
howev er, is only ex pecte d if public dem an d fo r truth an d ju stice re mains
constant or increases, and if the military is perceived as suf®ciently weak or
unwilling to impose sanctions on the government.
My e mp iric al a na ly sis o f ab ou t 3 0 ma inly L a tin America n an d African
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countries undergoing democratic transition after the mid-1970s lends substantial
support to all three arguments. An exhaustive analysis of those governments that
chose truth commissions or trials in response to con¯icting demands from the
public an d th e outg oing re gim e showed th at ch oic es te nd ed towards tri als as the
military was weaker and towards nothing as the military was stronger. Truth
comm issions emerged as a compromise solution when claims from both the
public an d th e mili tary were strong an d cred ib le . The dem oc ra tic governm en t in
this situat io n di d not ex pect the milita ry to take on the co sts of staging a co up,
especially since amnesty laws that exempt the military from prosecution have
usually accompanied truth commissions. Since the government wanted to please
the electorate an d give a favoura ble im pre ssio n to the in te rn atio nal co mm unity,
it established a truth commission as a ®rst step in the quest for truth and justice.
T he cases th at dev iate fro m our model display tw o notice able tre nds. First, public dem and seem s to be a necessary , th ou gh not suf® cient co nd it ion, fo r a
democratic government to establish truth commissions or hold trials. Second,
there is no em pirical ev iden ce of gov ernmen ts hav in g im plem en ted stronger
measures to resolve the human rights question than our model predicts. These
two ®ndings jo intly dem onstr ate that dem ocr atic gove rn m ents hav e freq uen tly
tended to accom plish le ss in th e ®eld of hum an rights than the balance-o f-powe r
argument would suggest, thus supporting my second argument regarding pru-
dence on the government’s side. Alternative explanations brie¯y suggested are
the lack of executive will to im ple men t human rig ht s poli cies (o ft en becau se of
strong links to the outgoing regime or the military), or continued threat from the
military or outgoing authoritarian leadership.
Fin ally, I hav e pre sente d em piri cal ev id ence sh owing that go vernmen t polic y
making in the human rights ®eld is not static. Negotiation and bargaining may
continue into the consolidation phase and lead to policy reversals. As the
development of several countries indicates, the human rights issue may gain new
salience with domestic changes in power balances. With the sole exception of
Argentina, policy reversals have been in favour of the public as democracybecomes consolidated.
In sum, the parsimonious approach employed in this paper has been useful in
explaining variation in human rights policies both across countries and across
tim e. There is a relatively strong patte rn in th e co nnections between tra nsition al
power an d th e ch oic e of truth co mmissio ns, tr ia ls or nothing , an d dev iant cases
tend in the same direction. Howev er, bec ause of th e relatively sm all number of
cases, we should be cautious when interpreting these results.
T here are at le ast th ree way s of expandin g or im pro vin g th is analysis: by
adding more cases; by re®ning the existing balance-of-power approach; or by
searching for alternative explanations. In the ®rst case, we need to wait for
history to unfo ld to see if new governm en ts undergoin g tr an sitions from
authoritarianism to democracy will choose policies that fall into line with the
pattern displayed in this analysis. L ikely te st cases to occur in th e nea r fu tu re are
South Africa (where trials have already started), Indonesia (where elections were
held June 1999), Nigeria (where dem ocratic elections we re held in Fe bruary
1999 for the ®rst time in 16 years), and Cambodia (where the UN is pressing for
tri als and dom estic dem an d fo r justice is becom ing m ore vocal). L ater, perhaps,
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war-torn countries such as Somalia, Sierra Leone and Colombia, should they one
day come to peace, may be added to the list. Second, a more integrated approach
using a formal nested games model could re®ne the balance-of-power argument
by allowing us to re¯ect the preferences of the executive where these deviate
from what the balance-of-power argument predicts. Such an approach may
further allow us to include other actors that potentially m ay in¯uence policy
making in the human rights ®eld, such as the judiciary.37
Finally, it migh t also
be useful to analyse to what degree institutional factors in¯uence policy
outcomes. More speci®cally, we could examine the power and autonomy of the
executive relative to that of the legislature and the judiciary and link our ®ndings
to variation in poli cy outc om es.38
If these arguments were formalised and tested in a large-n analysis setting,
they m ig ht shed new ligh t on im porta nt aspects of polic y mak in g in the ®eld of hum an righ ts, an d th us en hance our understandin g of whe n an d wh y de mocratic
governments frequently opt for a strategy of forgive and forget, rather than
seeking justice through prosecution and punishment of human rights violators.
Notes
I would like to thank the following for helpful comments and suggestions during various stages in writing thisarticle: Richard Anderson, W endy Be lcher, Barbara Geddes, E dmond Keller, IlguÈ O È zler, Daniel Posner, George
Tseb elis and Bria n Wal ker.1
SP Huntington, The Third Wave: Democratization in the Late Twentieth Century , Cambridge: Cambridge
Univ ersit y Press, 19 91 , p 23 1.2
See TL Karl & Schmitter, `Modes of transition in Latin America, Southern and Eastern Europe’,
International Social Science Journal , 128, 1991, pp 269±289; and G O’Donnell, `Introduction to the Latin
American cases’ in G O’Donnell, PC Schmitter & L Whitehead (eds), Transitions From Authoritarian Rule:
Latin America, Vol 2, Baltimore, MA: John Hopkins University Press, 1986.3
RA Mayorg a, `Dem oc rac y dig ni ®ed an d an end to im pu ni ty: Boli vi a’s mil it ary di ctat orsh ip on tr ial’, and JC
Sutil, ` ªNo victorious army has ever been prosecuted ¼º the unsettled story of transitional justice’, both
in JA McAdams (ed), Transitional Justice and the Rule of Law in New Democracies , Notre Dame, IN:
Univ ersit y of No tre Da me Press, 1997, pp 61±92, 12 3±154, respectively; and B Walsh, `Reso lving th e
hum an righ ts vi ola ti ons of a pr evio us regi me ’, World Affairs, 158(3), 1996, pp 111±135.4
Huntington, The Third Wave.5
See PB Hayner, `Fifteen truth commissionsÐ1974 to 1994: a comparative study’, Human Rights Quarterly,
16(4), 1994, pp 597±655; and D Bronkhorst, Truth and Reconciliation, Obstacles and Opportunities for
Human Rights, Amsterdam: Amnesty International Dutch Section, 1995.6
For a th orou gh di scu ssio n, see A Przewo rski, Democracy and the Market: Political and Economic Reform
in Eastern Europe and Latin America, Cambridge: Cambridge University Press, 1991.7
For di fferent vi ews on elite -focused transition theo ry, see W Hu nt er, `Negot iati ng civil Ðm il itary relati ons
in post-authoritarian Argentina and Chile’, International Studies Quarterly, 42(2), 1998, pp 295±317; Karl
& Schmitter, `Modes of transition in Latin America, Southern and Eastern Europe’; O’Donnell, `Introduc-
tio n to the La ti n Am erican Cases’ ; and Przewo rsk i, Democracy and the Market .8
It is a sad fact that the disappearance or murder of individual prominent left-wing politicians or foreigners
has frequent ly sol icit ed a great de al m ore nation al and in tern ation al at tent ion th an have the massa cres of
hund reds of po or indi genous peasan ts in remot e rural areas.9
See, for example, A Brysk, `The politics of measurement: the contested count of the disappeared in
Argentina’, Human Rights Quarterly , 16(4), 1994, pp 676±692.10
A natural objection could be made against treating the outgoing regime, the public and the incoming regime
as `unitary actors’. In real life, of course, there will be internal splits, con¯icting demands and opposing
poli cy pr eferences with in each of th ese `uni tar y actors’. Fo r in stance, there may be tensi on betw een
hard-l iners an d sof t-l iners wi th in the mil it ary; tensi on be tw een those am on g the pu bl ic who supported th e
outgoing regime and those who favour the new democratic government; or tension between the executive,
legislative and judicial branches of the government. Yet the government (ie the executive) will have to make
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an assessment of the intensity and credibility of all these con¯icting demands and the potential costs
involved in not complying with them. Although policy preferences exist on a continuum, I argue that it is
still analytically useful to distinguish between a strong and a weak military, a strong or a weak human rights
movement, or an executive which supports or opposes a given human rights policy.11
Note the potential con¯ict between the aims of truth, justice and reconciliation. Establishing the `truth’ may
require offering amnesty to the violators in exchange for information, which precludes justice in the form of prosecution. Some scholars believe that reconciliation is best achieved through amnesty and truth
commissions whereas justice is best achieved through reparations and prosecution. Yet these relationships
have been ho tly cont est ed. It is in evit able th at so cie ty m ay not alwa ys de mand bo th truth and ju sti ce .
However, I assume that the demand for justice is a politically more sensitive claim than the demand for truth
because the risk involved in the prosecution of perpetrators (that is sanctions in form of a coup) is arguably
hi gher tha n di sclosi ng th e facts abou t the vi olat ions. For a de bate on ho w tru th and justice may affect th e
prosp ects for reco nc iliat ion, see D Bron kh orst, Truth and Reconciliation; N Kritz (ed), Transitional Justice.
How Emerging Democracies Reckon With Former Regimes, Vols I±III, Washington, DC: United States
Institute of Peace Press, 1995; and J Zalaquett, `Balancing the ethical imperatives and political constraints:
th e di lemm a of new democraci es co nf