Confronting the Past: Justice After Transitions

In many ways, human rights have been at the center of the democratic revolution that has touched every part of the globe over the last few years. Although the democratic tide has run very strong, emerging democracies still face formidable challenges in establishing the rule of law and creating solid guarantees for human rights. These democratic governments often are successors to dictatorial regimes that practiced such gross human rights abuses as extrajudicial executions, "disappearances," systematic torture, and secret detention. The problem facing these newly democratized countries is how to treat those who were guilty of perpetrating such abuses under the old regime. The difficulty lies in achieving a just solution that is acceptable to a longsuffering population and that steers clear of both witchhunts and whitewashes. However poignant the victims' demand for justice might be, decision makers must still weigh the risks of starting a process that could frighten the military or other forces linked to the old order enough to jeopardize the democratic transition.

The issue is an old one that haunts all emerging democracies. In January 1793, the French parliament spent three agonizing days debating how to punish King Louis XVI before deciding to send him to the guillotine. Two hundred years later, similar debates continue to rage in many places. The death penalty has been abolished in almost all democracies, but democratic leaders still agonize as the French did at the end of the eighteenth century over what to do with their former rulers. As we will see from surveying the experiences of various governments who have dealt with this issue, there are no easy answers.

In countries such as Haiti and the Philippines, a de facto impunity has been institutionalized; human rights violations mount as members of the security forces come to believe that they are immune from prosecution. In other countries like Chile, the transition to democratic rule has been marred by the military's continuing grip on power and the resulting amnesty laws. Situations like this can cause rifts between newly elected governments and a citizenry still outraged at those responsible for past acts of official terrorism and repression. Elected leaders must sometimes make a hard choice between the survival of the democratization process and the principles on which they had based their campaign for a return to democratic rule.

Retribution versus Reconciliation

Advocates of retribution believe that failure to punish the perpetrators of past human rights abuses automatically condones these atrocious crimes, and therefore both constitutes an invitation to their repetition and undermines the rule of law. Proponents of this view, who tend to be human rights activists, find sufficient arguments for their stance in key principles of international law.¹ They also argue that focusing world attention on prosecutions of human rights violators may help to deter the forces of the old regime from attempting to retake power through violence. By highlighting and condemning the repressive policies of the old regime, the new government can help establish real standards for the protection of human rights. The prosecution of violators will also provide an opportunity to rid the armed and security forces of some of their worst elements. Perhaps most importantly, such an exercise can help to heal the wounds of those who suffered from official abuse, restore the lost sense of national dignity, and establish faith in the new government as it attempts to build a democratic system based on respect for rights and the rule of law.

Punishing perpetrators of past abuses can thus serve not only as a symbolic break with the ugly legacy of authoritarian rule, but also as an affirmation of adherence to new democratic values. Failure to prosecute violators, the argument goes, could seriously undermine the legitimacy of a democratically elected government and generate widespread feelings of cynicism toward the new regime. Advocates of punishment for former military rulers also contend that any concession to the latters' demand for impunity opens the door to a more systematic build-up of military control over the new institutions and gives the military a potential veto over the new government's policies.

On the other side, advocates of...