International Attempts at Transitional Justice

Note from the author: This blog was written to accompany the social justice cafe on Wednesday, November 30th at 4:00 pm on zoom. To join, sign up here. Alongside this event, this post focuses on an international scale while the recent post by Maya Crocker focuses on transitional justice in the United States. 

Forgiving and being reconciled to our enemies or our loved ones are not about pretending that things are other than they are. It is not about patting one another on the back and turning a blind eye to the wrong. True reconciliation exposes the awfulness, the abuse, the hurt, the truth. It could even sometimes make things worse. It is a risky undertaking but in the end, it is worthwhile, because, in the end, only an honest confrontation with reality can bring real healing. Superficial reconciliation can bring only superficial healing.

Archbishop Desmond Tutu

A headshot of a Black man smiling wearing purple clerical attire and collar.
Figure 1: Source: Flickr, John Mathew Smith; Archbishop Desmond Tutu in Washington, D.C., 1999.

What is transitional justice?

Transitional justice (TJ) refers to a set of judicial and non-judicial processes addressing previous injustices of authoritarian regimes (or multiple perpetrator groups) and establishing rule of law. Transitional justice has several aims and synthesizes aspects of punitive and restorative justice. 

According to the United Nations Office of the High Commissioner on Human Rights (OHCHR), these aims include: 

  • Providing recognition to victims 
  • Building trust between citizens and state institutions
  • Reinforcing the rule of law 
  • Committing to human rights and building solidarity with victims
  • Reconciliation between victims, perpetrators, and bystanders
  • Preventing new violations

But only characterizing transitional justice through its aims would not highlight the transformative effect this approach attempts in states where massive or systematic violations have occurred. While providing redress to victims and undertaking prosecutorial avenues as practical solutions, this approach also takes a strategic initiative to change the political systems, conflicts, and conditions that contributed to violations occurring in the first place. 

This field first emerged in the 1980s and early 90s in response to the drastic political changes in Latin America and East Europe. Human rights advocates and citizens alike questioned how and what kind of redress should occur in the wake of widespread and systematic violence. Fears over disrupting political changes by pursuing indictments of former leaders were salient: how could justice exist without compromising democratization? 

Thus, “transitions to democracy” and “justice” intersected and involved multiple processes to be sensitive to these concerns during a critical period in the country.

These processes are: 

  • Criminal Prosecutions: judicial investigations
  • Truth Commissions: ad hoc commissions of inquiry established in, and authorized by, states for the primary purposes of investigating and reporting on key periods of recent past abuse. 
  • Amnesty: a pardon granted to perpetrators, usually granted to those who comply with truth commissions and offer testimonies
  • Purges, lustrations, and security reforms: (1) removal of known collaborators of oppression from office and state institutions, (2) process of vetting personnel in state institutions, (3) transformation in state institutions involved in repression, like the military, police, judiciary
  • Reparations: state-sponsored initiatives that aim at repairing, on a massive scale, the consequences of past abuse experienced by certain classes of victims, including material and symbolic benefits
  • Gender Justice: focusing on the intersections of human rights abuse and gender during a period of repression, fact-finding initiatives to establish the nature of gendered abuses
  • Memorialization: museums, memorials, and other means of preserving the public memory of victims and raising moral consciousness about past abuse

Ultimately, TJ is a context-specific process that crucially (and historically) is led by the nation where the violations happened.

Specific attempts at transitional justice: the good and bad

Bolivia

Days after the restoration to democracy in 1982, the government created the National Commission of Inquiry into Disappearances. No reports or prosecutions were produced. In 1986, prosecutions began against the former military leader, General García Meza, and some of his officers. The trial was not complete until 1993, by which point Meza had gone into hiding to avoid a 30-year sentence for torture and murder. Notably, this court case rejected pardons for those convicted of crimes against humanity. 

Uruguay

After a 12-year military rule in 1985, the new government avoided truth commissions. Instead, President Sanguinetti issued a pardon (1986) to all soldiers and officers of the previous regime, with no distinction as to those who followed orders and those who gave them. He claimed this was the ‘safest path’ but ‘not a moral decision,’ highlighting that TJ attempts are not pursued in every situation. This is often a result of corruption and officials often rely on a dialogue of ‘national reconciliation by granting large amnesties but failing to pursue any other TJ processes, essentially dismissing victims’ realities.  Victims were denied any form of reparation and violators remain in high office in the police and military. An official Commission for Peace was established in 2000 under President Jorge Batlle with the official report released in April 2003 confirming that the military dictatorship was involved in some of the disappearances. 

Chile

This history of Chile’s dictatorship and eventual prosecutorial redress can be read about in my next blog. Part of the reason for the near-decade gap between the restoration of democracy (1990) and Pinochet’s arrest (1998) was due to Pinochet’s change of the constitution during military rule. Not only did he pardon himself and his torturers in 1978, but he enshrined legal protections from purges and lustration attempts. Nonetheless, Chile has engaged in memorialization and reparations in the cases of successful prosecution of former DINA police. 

El Salvador: 

A Commission on the Truth of El Salvador was established in 1991, led by three international jurists and staffed and financed by the United Nations. While only fully investigating 33 disappearances out of the reported 22,000, the commission did identify 40 individuals connected to the armed forces and involved in crimes against humanity. Additionally, the Commission was able to confirm the El Mozote massacre, where nearly 1,000 villagers were killed by US-trained and equipped Salvadoran army members. The Commission also called on the Supreme Court to retire, which they declined. René Ponce was named general and ordered the execution of 6 Jesuit priests (one the then head of the Human Rights Institute). Due to Ponce’s involvement in the peace negotiations and settlement with FMLN, his prosecution was never attempted. The report from the truth commission was rejected and the then-president offered a blanket amnesty for all political crimes which the Supreme Court upheld (1995). After 20 years, no other transitional justice attempts have been implemented. 

Haiti:

Haiti suffered massive human rights violations under the Duvalier reign between 1957 to 1986. Over 40,000 Haitians were killed and it wasn’t until 1990 that democracy was established with the election of President Jean-Bertrand Aristide. Soon after, he was ousted by General Raoul Cedras, showing just how volatile transitions toward democracy can be. Under Cedras, hundreds were killed by the paramilitary group Front for the Advancement and Progress of Haiti (FRAPH), funded in part by the CIA. Democracy was restored in 1994 and power returned to Aristide but at the cost of blanket amnesty for all rapes, murders, and political killings. He went on to establish a National Commission for Truth and Justice which in February 1996 urged for the prosecution of individuals who committed crimes against humanity by an international tribunal. There has been no tribunal and no prosecutions, and to this day impunity is chronic

Argentina: 

Spray painted image of a general with crossed-out eyes on a wall. The words “More than 30,000 reasons for popular justice. Never again look the other way" are painted beside the images.
Figure 2: Source: Yahoo Images, Colin Snider; Graffiti of General Jorge Videla with the phrases “More than 30,000 reasons for popular justice. Never again look the other way.”

Argentina took the most extensive approach of the states discussed so far. In 1983 after the defeat of the military in the Falklands Wars, President Raoul Alfonsín annulled the amnesty the military had given themselves. He also set up the Commission on the Disappeared which produced the report Nunca Más (Never Again) which was a national bestseller – fulfilling some forms of memorialization. The evidence the commission gathered was used to prosecute 5 of the most senior members of the military junta, but when indictments began on less senior officers the military revolted in 1987. Trials ceased to end the conflict but Alfonsín refused to give any pardons. His successor Carlos Menem was the one to pardon ex-president Videla and others on grounds of “national reconciliation.” In spite of Menem’s undermining, human rights groups and families of the disappeared renewed the vigor for criminal accountability in 2003, and as of 2010, more than 800 face criminal charges and 200 have been sentenced. 

South Africa:

When one thinks of “truth and reconciliation” or “truth commissions,” the most likely example to come to mind is South Africa. After the end of apartheid (a crime against humanity) in 1994, the new democratic government formed the unique tripartite Truth and Reconciliation Commission (TRC). It had three responsibilities: (1) record the apartheid era for memory, (2) make recommendations for reparations, and (3) grant amnesty to individuals based on application and only in limited circumstances. 

This was a revolutionary step for transitional justice and helped citizens come to terms with the violent and discriminatory apartheid. In spite of the success of this TRC, no prosecutions have ever been mounted and organizations like Human Rights Watch and Amnesty International fear the TRC suggestions are not being fully implemented. 

Nonetheless, it is important to note that the commission was chaired by none other than Archbishop Desmond Tutu whose ceaseless human rights efforts have helped define the role of TRCs as both forward and backward-looking. In his words, “True reconciliation is never cheap, for it is based on forgiveness which is costly. Forgiveness in turn depends on repentance, which has to be based on an acknowledgment of what was done wrong, and therefore on disclosure of the truth. You cannot forgive what you do not know.” 

United States: 

For an in-depth examination of the transitional justice movement in the United States, please read Maya Crocker’s blog here

Conclusion

Without addressing the seeds which sprouted violence, the threat of their reoccurrence cannot be escaped. This means acknowledgment, and hardest of all, forgiveness. While a generation suffered, hatred should not be allowed to pass down and threaten long-lasting peace.

This is not easy, but if you believe in human rights, affirming the realities of victims and perpetrators and all those in between is crucial. As Desmond Tutu says, We must not only speak about forgiveness and reconciliation, we must act on these principles.” 

This post draws a lot of information from the book Crimes Against Humanity: The Struggle for Global Justice by Geoffrey Robertson, originally published in 1999 with multiple editions given the continuous development of human rights. I will be utilizing information from a 1999 edition, and thus, certain information on the results of transitional justice attempts will have developed more in the last two decades. If you are interested in obtaining a copy for yourself, the latest edition was updated in 2013 and includes additional sections on Iraq, Guantanamo, the Obama administration’s use of drone warfare, the Charles Taylor conviction, and the trials of Mladic, Karadzic, and Khalid Sheik Mohammed. 

A book cover, there is no background, only a bold white title against black. 
Figure 3: Source: Target; Cover of the aforementioned book.

Geoffery Robertson is an internationally acclaimed lawyer and human rights advocate who has served as a UN war crimes judge and founded Doughty Street Chambers in London, a leading human rights law practice. In his book, he deconstructs international human rights law, beginning with the foundational philosophy of rights dialogue (natural rights, social contract, Enlightenment) and moving through the defining events of 20th-century human rights law formation. His book is written in a non-legalese, prose-like style and is a strong starting point for learning a breadth of information about the very complex processes behind prosecutions (and more often why they don’t happen). 

If this interests you, read Robertson’s book or check out more blogs from IHR below:

  • What is the International Criminal Court and Why Should I Care?
  • The Age of Human Rights?
  • Relativism’s Implications on Universal Human Rights
  • A Bright Future – Recent Human Rights Victories 
  • Justice(s) for Crimes Against Humanity: The Uyghur Muslims in China
  • Covenants Without the Sword: International Humanitarian Law (IHL) and Sexual Violence

The U.S. Migration Crisis

Visual depiction of article contents
This image, depicting a U.S. Border Patrol Agent on horseback capturing two Haitian migrants, went viral on Twitter in September 2021. The backlash caused heightened calls for immigration reform in the United States. SOURCE : Yahoo! Images

On October 10, 2021, seventeen migrants fleeing from Cuba were apprehended after coming ashore near Key West, Florida. Arriving on a “chug”, or small, rustic boat that is common for those fleeing Caribbean nation-states, the migrants were given breakfast by police. Despite this small gesture of kindness, the migrants will most likely end up being deported back to Cuba.

As reported by the Miami Herald, in the fiscal year of 2021, the United States Coast Guard arrested 838 Cuban migrants, a staggering number considering that only 49 were detained  in 2021. This recent uptick in Cuban migration reverses a downward trend that was seen after President Obama ended the “wet foot, dry foot” policy in 2017, which had allowed most migrants who made it to American soil to stay in the nation. The policy had first been introduced in 1995, and it’s reversal was an attempt to “normalize” diplomatic relationships with Cuba. Since the Cuban Revolution in 1959, over one million Cubans have uprooted their lives to come to the United States.

But perhaps even more alarming to those watching over the rights of undocumented persons is the plight of over 30,000 Haitian migrants who were expelled back to Haiti by Texas immigration authorities in record time in September 2021. Twitter exploded when a photo of U.S. border control agents on horseback chasing Haitian migrants was posted, highlighting the inhumane treatment many fleeing refugees face when making the dangerous journey to the United States. Immigration, an issue that has been a hot-button topic in the United States for decades now, has once again come into the collective conscience of domestic issues in the United States. Reform, now perhaps more than ever, is the call of all Americans, regardless of political alignment.

The Causes of Haitian Migration to the United States 

To understand the migration crisis that is currently occurring at the southern border of the United States, it is paramount to explore the issues that are causing people to make a life-threatening journey of thousands of miles for the wish of a better future.

Haiti has experienced both natural disaster and political instability this year. On July 7, 2021, Haitian President Jovenel Moïse was assassinated in his home in Pourt-a-Prince, leaving the county in a vacuum of political unrest. And barely one month later, the already unstable state was rocked by a 7.2 magnitude earthquake, killing over 2,300 people and injuring over 12,000. 77% of those affected were already experiencing poverty.

Haiti has also been unable to recover from the 2010 earthquake, with over 300,000 people still living in unofficial housing or displacement camps. The cholera epidemic that was introduced by United Nations peacekeeping forces in the aftermath of the earthquake has infected over 800,000 people and claimed the lives of over 10,000. Haiti continues to hover in the bottom 10% of nations on the Human Development Index, with 2020’s report seeing Haiti at #170 out of 189 nations tracked by the system, the lowest of any country in the Western Hemisphere.

The promise of economic opportunity for Haitians, who are expected to earn $1,709 dollars per capita as Gross National Income, is enough to draw many away from Haiti. But as climate change continues to make tropical storms more numerous and severe in the Caribbean, we are not only seeing economic and political refugees flee to the United States, climate refugees have already begun to flee the immense poverty and misery present in Haiti and other Caribbean island nations. Climate refugees, This multitude of push factors have led hundreds of thousands to flee to the United States on the often unobtainable promise of a better life in a new country.

Attempts to Reform Immigration in the United States 

Shows
Immigrants arriving at Ellis Island in the late 19th century. SOURCE : Yahoo! Images

The immigration debate in the United States has existed for almost as long as our nation itself. While immigrants from nations such as Ireland and Italy faced harsh discrimination throughout the 19th century, immigration remained relatively open and free. After the Supreme Court declared immigration regulation a federal responsibility in 1875, immigration controls were put in place quickly, with the Chinese Exclusion Act of 1882 beginning over a century of isolationist, anti-immigration political rhetoric and policy that lasts to this day.

After current President Joe Biden declared that the current United States immigration policy was a “moral failing”, human rights activists were excited for changes that would allow asylum-seekers and refugees an easier path to shelter. Biden also promised to “tackle the root causes of irregular migration”, sending a message that human rights abuses causing the crisis we are seeing out of Haiti and other Central American countries may finally be dealt with, raising the standard of living throughout these states and limiting the need for refugees to uproot their livelihoods to come to America.

Despite the hope for immigration reform on all sides of the American political spectrum, misinformation and fear have brought the possibility of positive change to a grinding halt. The most popular plan as of now is to introduce a path to citizenship for those who came to the United States before 2010. While this is amazing progress, it does not address the modern immigration crisis we have seen occur in the 2010’s into this new decade. It also would not provide amnesty for any Haitian refugees or asylum seekers who came to America in the aftermath of the 2010 Haitian earthquake.

There has been positive progress towards providing refuge from international crisis. The United States has seen a massive decrease in immigration arrests in fiscal year 2021. With the lowest numbers reported in a decade, the level of arrests in 2021 was 4.5x less than it was in 2011. Despite this progress in policy enforcement, actual changes in policy that tackle the systemic causes of mass migration from Central America and allow asylum seekers to more easily enter the United States would truly alleviate the migration crisis at our southern border.

Under the Surface: Navigating Through the Art of Edouard Duval-Carrié

On February 4th, 2020, the Institute for Human Rights, alongside the African American Studies Program, the Department of Art and Art History, the Department of Foreign Languages and Literatures, and the Department of History hosted a discussion with artist Edouard Duval-Carrié. The event was moderated by Dr. Charly Verstraet of the Department of Foreign Languages and Literatures at UAB. Duval-Carrié and Dr. Verstraet discussed Duval-Carrié’s different works, a large overview of his work, as well as the width of the scope and the diversity of his works. Dr. Verstraet and Duval-Carrié specifically discussed Duval-Carrié’s Indigo Room and his collection of artworks entitled Imagined Landscapes before addressing questions from the audience.

The theme of the night was “Under the Surface,” which was described to have two meanings. The first is to delve into what is hidden and unseen in the world and the second is a representation of silence. These meanings carry over into Duval-Carrié’s work and in his life. Duval-Carrié is based in Miami but was born and raised in Haiti. Much of his work represents his Haitian culture and the relationship between the Caribbean and the United States.

Duval-Carrié speaking about his project.
Duval-Carrié speaking about his project. Source: UAB Institute for Human Rights.

The first piece of art presented was Indigo Room. This art installation is a room of blocks, created by local high school students, with a large feminine figure on the ceiling. Duval-Carrié described the piece to be a celebration of the bicentennial of Haiti’s independence as well as to signify the movement of Haitians from Miami to Fort Lauderdale, New York. He worked directly with high school students and asked each one to create a “memory window,” about Haiti. These “memory windows” were encased in resin and placed in the museum alcove. The installation is blue, to represent being underwater. Duval-Carrié stated that he wanted to make sure that as Haitian people arrive to different cities in the United States, the Haitian culture arrives with them as well The figure on the ceiling is the ultimate mother in Haitian culture, representing both the cosmos and water. He described the installation as a mix of the past, religion, and politics. Duval-Carrié also said that in 2014, he and the students who he worked with to create the installation reunited. He described being so impressed at how many of them continued with the arts into their adult lives.

The second discussion point was the collection of artworks entitled Imagined Landscapes. These pieces are re-imagined from the artworks of the Hudson River School, depicting an idealized Caribbean. Duval-Carrié described the Hudson River School paintings as alluring and romantic. While the paintings were beautiful, they forgot to incorporate the humans living on the islands and the suffering they endured. Duval-Carrié’s re-imagining took select Hudson River School paintings and upended them, making the scenery large and mysterious. Most importantly, he adds the culture of the Caribbean and the heartbreak of United States imperialism back into the landscapes.

Duval-Carrié has taken his talent and passion for art to inspire important conversations around the world. He encourages Haitians to be proud of their heritage and their country. He encourages Americans to recognize the way imperialism reshaped entire countries and how those countries are still reeling from its effects. It is important to acknowledge the powerful effects of art in reclaiming culture and sparking conversations and it is vital that we keep those conversations flowing.

Duval-Carrié taking questions from the audience.
Duval-Carrié taking questions from the audience. Source: UAB Institute for Human Rights.

If you are interested in learning more about Mr. Edouard Duval-Carrié, you can look at his  webpage where a listing of his current exhibitions can also be found.