Chapter 1 – Introduction
2.1 Literature Review
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Chapter Two – Literature Review and Theoretical Framework
2.1 Literature Review
The literature review for this thesis is broken into two sections considered most relevant to a comparative analysis of the transitional justice of Taiwan and South Korea. The first section is a summary of theories related to transitional justice as a broad topic. The second section delves into the specific mechanisms used to carry out a process of transitional justice in a newly democratized governing system.
2.1.1 Theories of transitional justice
Transitional justice is a field that has seen a large growth of scholarship over the past few decades. Despite this, many who research transitional justice admit that it is
undertheorized (De Greiff, 2012; Dancy, et al., 2013). The purpose of this section, then, is to discuss a few of the major arguments in this area and to show the relative lack of consensus amongst scholars.
Teitel (2000) creates a paradigm of transitional justice in which the rule of law is extraordinary and symbolizes normative change in periods of political transformation, with each mechanism of jurisprudence a tool to separate the new order from the old, nondemocratic one (p. 215). For example, perpetrators of human rights violations are brought to justice via criminal trials after transition, despite the fact that when they committed those crimes, it was perfectly within the limits of that legal system. As the author states, “what is deemed fair and just during periods of radical political innovation is not necessarily arrived at in deliberations under idealized conditions and regular procedures” (p. 224). Furthermore, she argues that entrenching the response used in the transitional period towards violations of human rights misses “the core transformative message: the belief in the human possibility of averting the tragic repetition of the past in the liberalizing state” (p. 228).
De Greiff (2010), however, disputes Teitel’s argument, which he calls the “distinctive thesis,” declaring it a mischaracterization of law during normal periods. He argues that law “by its very essence [is] always and inevitably as Janus-faced as Teitel suggests it is
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only in transitions” (p. 60). He also critiques the conclusion her theory produces, that transitional justice is a complex and sensitive process and that no one response is correct in addressing past wrongs, but that how it should be pursued is contingent on several historical, social, and political circumstances (p. 60). He believes that this statement is too elementary for an actual theory, in that it provides no “guidance with respect to which of the compromises that politics and history seem to force upon us are legitimate and which are not” (p. 61)
De Greiff instead advances a theory of transitional justice that displays the relationship between the different mechanisms of transitional justice and how they work together as a whole to accomplish two “mediate goals,” recognition and civic trust, and two “final goals, which are reconciliation and democracy (p. 34). In contrast to Teitel’s thesis, De Greiff believes that “transitional justice articulates the requirements of a general
understanding of justice when applied to the peculiar circumstances of a very imperfect world” (p. 34).
Like De Greiff, Philpott (2012) views justice in periods of political change as a means to an ultimate end. However, he views the overarching goal of transitional justice measures to be that of reconciliation. This, he writes, is a gradual process of restoration of
normalized relationships between those who govern and those who are governed in a given political order (p. 288). Philpott’s ethic of reconciliation must include a
combination of six practices, which are “building socially just institutions,
acknowledgement, reparations, punishment, apology, and forgiveness” (p. 172). Two of the practices, apology and forgiveness, differentiate his ethic from what he terms the
“liberal peace,”6 the “dominant paradigm of peacebuilding” (p. 288).
2.1.2 Transitional Justice Mechanisms
The mechanisms involved in carrying out transitional justice in the wake of a political transition or post-conflict situation are varied and their applicability and appropriateness
6 The Lockean concept adopted by the West and prominent supranational organizations of a peacetime arrangement that includes free elections, constitutions that guarantee human rights and independent judiciaries, reform of police and military branches, establishment of free markets, and accountability for human rights violators (Philpott, 2012, p. 1-2).
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are a source of debate between different scholars. Olsen, Payne, and Reiter (2008) group the arguments for different transitional justice mechanisms into three separate
approaches: “maximalists who support prosecutions as the best mechanism…,
minimalists who consider amnesties the best mechanism…, and moderates who advocate truth commissions to produce positive results” (p. 3) Each of these approaches also proposes other, additional means of pursuing transitional justice, including reparations, vetting for official positions, apologies, institution building, and memorialization for victims.
Among those that push for the maximalist approach, trials are seen as a means of establishing norms of accountability in a transitional society, and as a way to deter would-be violators from committing human rights abuses in the future (Mendez, 1997;
Kim and Sikkink, 2010). There also exists the argument that both the rule of law in civilized societies and standards set by international law necessitates prosecutions of human rights violators (Orentlicher, 1991). Finally, proponents of criminal trials point to their tendency to apportion accountability to individuals, thereby avoiding “the dangerous culture of collective guilt and retribution that produces further cycles of resentment and violence” (Kritz, 1996).
The minimalist approach, on the other hand, argues that criminal trials in states where democratic institutions and the rule of law are still weak and where spoilers, those who benefitted from the ancien regime, are still empowered, enforcing norms of criminal accountability may have a negative impact on democratic consolidation (Snyder and Vinjamuri, 2003). Mendeloff (2004) asserts that simply not enough empirical evidence exists to determine whether trials or other truth-seeking processes actually have any effect, positive or negative, on peace and reconciliation, and that the arguments in favor of these measures tend to rest on assumptions based on faith, rather than on logic.
The main standard for the minimalist approach, then, is reparations for victims. Peté and du Plessis (2007) note that reparatory justice may take a number of forms, including
“restitution in kind, compensation, satisfaction, and assurances and guarantees of non-repetition” (p. 15) and that the definition of these can be nebulous and hard to pinpoint.
They argue that reparations are an “integral part of the obligation imposed on states by
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international human rights law and humanitarian law” (p. 13) citing Article 8 of the UN Declaration of Human Rights and the International Covenant on Civil and Political Rights (hereafter the ICCPR), among others. Similarly, De Greiff (2012) believes that reparations improve civic trust “by demonstrating the seriousness with which institutions now take rights violations” in that monetary remuneration has more material value than a verbal apology (p. 46). Hayner (2011) agrees that reparations are a valuable means of attempting to atone for the past. She mentions that money is only one way of
compensating victims, that it can be linked to development policies, like social services or public works, noting “there may be a way to link the service delivery capacity of the economic development field with a community-based approach to reparations, presuming that this link is made explicit” (p. 166).
The basis for the moderate approach is that some form of accountability for human rights violations is necessary, but that a less retributive mechanism than criminal trials can ensure political stability in a transitional period. Truth commissions serve this purpose in that they “establish accountability, officially condemn past violations, and promote restorative justice” and “at the same time they avoid the political risks associated with prosecuting perpetrators” (Olsen, Payne, & Reiter, 2008). Hayner (2011) also notes that
“their broader mandate to focus of the patterns, causes, and consequences of political violence allows truth commissions to go further in their investigations and conclusions than is generally possible (or even appropriate) in a trial” (p. 13) Gibson (2004), in a study that surveyed the effects of the Truth and Reconciliation Commission on ethnic reconciliation in South Africa, found that, overall, these were positive. He concludes that
“the truth and reconciliation process seems not to have had a negative influence among Africans, while having positive influences on whites, Coloured people, and those of different origin” and that this “indicates that the process has clearly been a net benefit to South Africa” (p. 215).
Lastly, a growing portion of the literature on transitional justice has focused on the merits of what a number of scholars and NGOs have dubbed a “holistic” approach, or the use of multiple, overlapping mechanisms (Mendez, 1997; Olsen, Payne, & Reiter, 2010; De Greiff, 2012; Philpott, 2012). There seems to be a fairly broad consensus among
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transitional justice scholars that this kind of approach is more beneficial than the use of only one mechanism or another, or a lack of any mechanisms at all.
Mendez (1997) posits that accountability for human rights abuses gives rise to a set of obligations of the successor state to the victims of those abuses. The obligations, he notes, are “multifaceted and can be fulfilled separately, but should not be seen as alternatives for one another” (p. 255). His argument is that prosecutions and trials, in addition to other, peripheral instruments, must serve as the focal point of any approach towards transitional justice.
In a similar vein, De Greiff (2012) in his chapter on theorizing transitional justice, maintains that each mechanism of addressing past human rights abuses are “parts of a whole” (p. 34) and that “the weakness of each of these measures provides a powerful incentive to seek ways in which each can interact with the others in order to make up for their collective limitations” (p.35) Furthermore, he states that each mechanism is closely connected in “bi-directional” relationships, and that the use of one naturally necessitates the use of another (De Greiff, 2012, p. 37).
Philpott (2012) also argues for a combination of different mechanisms, which he classifies under the general practices of building socially just institutions,
acknowledgement, reparations, punishment, apology, and forgiveness (pp. 172-175).
Reminiscent of De Greiff, he contends that “the practices complement one another, complete one another, and weave together” and that “a surfeit of one practice cannot make up for a deficit of another” (p. 171). The end goal of these practices and transitional justice in general, then, is to bring about reconciliation, “the broad restoration of right relationship with respect to the wounds that political injustices enact” (p. 288).
Lastly, a large, cross-national empirical study undertaken by Olsen, Payne, & Reiter (2010) finds that two specific combinations of mechanisms positively affect a
transitioned country’s democracy and human rights. The “justice balance” as they term it, consists either of amnesties and criminal trials for perpetrators (in that order), or
amnesties, trials and truth commissions (p. 996). The second combination is especially effective in the case of a negotiated transition, as in that of South Korea or, to some extent, Taiwan (p. 1002).
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To conduct this study, the researchers used five separate indices that measure human rights and democracy: the Freedom House Civil Liberties and Political Rights scales, the CIRI Physical Integrity index, and Amnesty International and the U.S. State
Department’s Political Terror Scales (p. 998). They found that any other combination of mechanisms or mechanisms used alone either had a negative impact or no discernible effect on a newly democratized country’s human rights and democracy (p. 998).
It is important to note that South Korea is named specifically in the academic paper produced from the justice balance study, in that it first instituted a policy of amnesty towards political prisoners under the final authoritarian leader, Roh Tae-woo, and then proceeded with both trials and truth commissions after democratization (p. 1003).