The Costs of Justice: How New Leaders Respond to Previous Rights Abuses

2.The Justice Spectrum

2 The Justice Spectrum A New Methodological Approach to Studying Transitional Justice In this chapter, I discuss methodological problems that currently hinder us from effectively analyzing key determinants of justice policies, and propose a new tool to help us overcome these problems. More specifically, I argue that underspecification of the dependent variable (justice) makes it difficult to produce hypotheses and empirical observations that succinctly correlate power to justice type. The tool that I propose here, referred to as the “transitional justice spectrum,” is designed to minimize this problem and thus allow researchers to conduct more rigorous, cross-national tests of transitional justice arguments. This spectrum is intended to serve as a yardstick to assess causality in transitional justice decision making, an analytical tool that will impose greater clarity on what, and subsequently how, these researchers are measuring. I begin this chapter by discussing methodological shortcomings in the current literature. Next, I explain the theoretical rationale for my transitional justice spectrum before I break the spectrum down into its component parts, briefly exploring each measure and discussing its placement. In the next chapter, I will discuss in detail the research design for this book, explaining how this study uses the transitional justice spectrum to explore 35 key determinants of transitional justice in the cases of Poland, Serbia, Croatia , and Uzbekistan. THE WEAKNESSES OF RELATIVE POWER In chapter 1, I raised a number of challenges to the various relative power arguments before presenting my own strategic argument. One purpose of highlighting these challenges is to suggest the need for more vigorous scrutiny . The enumerated shortcomings demonstrate the types of holes and inconsistencies that are prone to fester in theories not tested empirically using clear measures. Indeed, perhaps because of the natural appeal of relative power explanations, scholars frequently defend them by largely anecdotal evidence. Samuel Huntington, for example, evaluates his popular argument by referring to a range of cases, from the Philippines to Romania, which appear to support his thesis. To pick one example, I look at the case of Uruguay , which Huntington claims had, under military rule, the highest proportion of political prisoners in the world.1 According to Huntington, the transitional justice policies of Uruguay’s new leaders, who came to power through negotiations, were severely constrained by the prevailing power of military officers who first promised to obstruct criminal prosecutions and then made threats in order to influence (successfully, Huntington says) a public referendum on the subject.2 Similarly, the new regime’s relative weakness left it unable to pursue a truth commission, which, according to one general, would have compromised the amnesty that military leaders assured themselves by handing over power. Instructive as this study is, Huntington is guilty of oversimplification, and he rests his theory that, across cases, “justice was a function of political power” on the observation of only two aspects of justice: criminal prosecutions and truth commissions.3 Even arguments intended to look beyond relative power frequently revert to this truncated indicator. Luc Huyse, for example, concludes that “the need to avoid confrontation”4 prompts new elites to exchange criminal prosecutions for truth commissions as “the least unsatisfactory solution.”5 Michelle Sieff and Leslie Wright, who argue that relative power sets “the parameters for the application of the norms of justice ,” similarly conclude that if new elites believe that peace and justice 36 | THE COSTS OF JUSTICE are reconcilable, they will prosecute, but otherwise they will opt for truth commissions.6 This focus on the “usual suspects” of transitional justice (criminal trials , amnesties, or truth commissions) is problematic. First, these terms may marginalize other justice measures that have been employed (perhaps successfully ) by political elites around the world. Indeed, scholars have explored the pros and cons of a whole gamut of intermediate policies, including public apologies, victim compensation, and banning perpetrators from public office.7 More important, underspecification of the dependent variable makes it difficult to produce hypotheses and empirical observations that succinctly correlate power to justice type. How can one correlate transitional justice and power when there is no clear understanding of how the many transitional justice measures relate to one another? How do these policies compare to one another qualitatively, and under what conditions will a new leadership decide to implement which steps? While relative power might correlate nicely with the likelihood of criminal prosecutions, this does not provide strong evidence that justice is a...