Transitional justice measures should be used carefully to heal conflict wounds
When Japan made its most recent apology in 2015 to the government of South Korea for its World War II sexual enslavement of South Korean women, it came with a one billion-yen (US$8.3m) foundation for “medical, nursing, and other services” for the surviving 46 victims. In return, Seoul would recognise that the long-standing issue would “finally and irreversibly” be resolved and that both countries “will refrain from accusing or criticizing each other regarding this issue in the international community”.
What was missing from Japan’s latest effort to address its war conduct was the unconditional acknowledgement that Japan as a state sanctioned the policy of “comfort women”, the term assigned to the enslaved women. Indeed, some surviving victims refused to accept it as an apology, demanding that “[t]hose who commit crimes must take official, legal responsibility”.[i]
“Never underestimate the power of apologies,” notes Anja Mihr of the Willy-Brandt School of Public Policy at the University of Erfurt. “For foreign policy between Japan and South Korea, it is the perfect example.”
Mihr was speaking at a recent SMU School of Social Sciences seminar, “Seeking Justice and Good Governance in Societies in Transition” where she highlighted the example of former West German Chancellor Willy Brandt, whose Warschauer Kniefall provided a symbolic closure to World War II in conjunction with the signing of the Warsaw Treaty on the same day. Brandt also stated in his televised address in Warsaw: “I maintain, therefore, that to uphold this treaty, reconciliation and peace, is to accept German history in its entirety” in clear reference to German responsibility for World War II.
Mihr also highlighted Germany’s acceptance of guilt via reparations, especially to Israel which continues to receive payment. Mihr lists other measures to institute what is called transitional justice, which the United Nations describes as “the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation”:
“You don’t have to apply all of them at once,” Mihr points out. “You can sequence the measures, but you should have a mixture of them. If you only have trials and apologies but nothing after that, it won’t work.”
While apologies and reparations are more commonly associated with inter-state relations, amnesties are useful in cases of civil conflict. Even though Mihr describes amnesties as “the most disputed transitional justice measure on the planet for the past 20-30 years”, she elaborates on how it can be used.
“When amnesty is considered,” she says, “it doesn’t apply to people such as Slobodan Milosevic or Pol Pot. Those are not people you amnesty. You amnesty the third- and fourth-level officials.
“When transitional justice begins in Syria, the big debate will not be about whether Assad will be tried because he will be. Even his cabinet will be tried. Below that level, where the technocrats and lawyers and administrators in the ministries work, yes they were loyal to the regime but they are unlikely to be tried because you need a functioning bureaucracy to set up a new good-governance regime. Many people will say, ‘This is not fair’, but that’s the reality.”
When asked on the situation in Colombia where FARC rebels have indeed been granted amnesty, Mihr replied: “The solution is you can’t have full trials on everyone, but if you have full amnesty on everyone, you’d have impunity. How do you get the right mix? You have vetting and lustration.
“You take the third-, fourth- and fifth-level officials and say, ‘Let’s see to what degree you’re responsible for the atrocities.’ For example, the commander of the FARC, yes he’s freed but he cannot run for the office of President. Even if he gets 100 percent of the vote, the compromise is, ‘You can be free but you cannot seek higher political office.’ You can be the owner of a car company but you cannot be in politics.”
Mihr pointed to another case of domestic strife, the 1992 Rwandan genocide, to illustrate the binding principle for lasting peace: putting blame on both sides.
“It’s very painful to do this,” Mihr states. “Like in Rwanda with Paul Kagame who freed the Tutsis from the Hutus and ended the genocide. When the trials started, there were hardly any Tutsis ever tried for massacres. Acts of revenge by Tutsis were against international human rights laws but few Tutsis were tried. The international community said, ‘This is tricky, but you’re not doing this inclusively.’”
In cases where indigenous people have suffered there are historical injustice, such as in the First Peoples in Canada and the Aboriginals in Australia, Mihr advocates affirmative justice but only for a specified period of time.
“We see for instances in Canada with the First Nations people [where the chosen measure] is affirmative action. If you can prove you are First Nations people, and you want to enter university, you get a free scholarship.
“There’s a dilemma here. On one hand, these affirmative action programmes can create new racial divides via privileges. This has gone on for about 10 to 15 years, so there’s not enough data [to say if racial divides have been created]. I believe you need it for a generation, and then you go back to basing it on merit.”
She concludes: “The big question is not about the measures but the purpose of it. Does it create new privileges or conflict? Or does it create peace?”