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number 5, 2009

Comparing the Effectiveness


Overview

A society that transitions from

of Accountability Mechanisms
authoritarianism or armed conflict to a
democracy needs to address important
questions of justice and accountability
for past human rights abuses in order
to build a stable and peaceful future.
In the rapidly maturing field of transi-
in Eastern Europe and
tional justice an expanding number of
initiatives have taken place providing
Latin America
valuable lessons for newly democratiz-
ing societies. This policy brief reviews
the experiences of transition countries
in Latin America and Eastern Europe
in undertaking various accountability
mechanisms: truth commissions, trials
and amnesties in Latin America; and
A society emerging from war or authoritarianism
seeks to reckon with past human rights atrocities that, if  not addressed, can
threaten the state’s legitimacy and democratic foundations. It is in the interests of 
lustration, opening of secret service files, sustainable peacebuilding and democratic consolidation to promote reconciliation
compensation and restitution in Eastern
and healing, and foster human rights and the rule of  law. In order to achieve such
Europe. It identifies variables which may
a transformation over the long term, the organizational strategies, political styles
determine the effectiveness of certain
and mechanisms used to consolidate democracy are of  critical importance and
mechanisms, and builds on the expand-
deserve closer comparative analysis with the aim to provide valuable lessons for
ing body of evidence-based research.
newly democratizing societies.
Latin American and Eastern European transition countries have experienced,
more or less simultaneously, transitions from authoritarianism/communism or
conflict to democratic rule. The record in these two regions reveals the reasons
why certain accountability mechanisms were engaged, and the impact that their
application has had on human rights protection and democratic practice. It sug-
gests that the mechanisms, when effective, can unlock enabling conditions for the
development of  a more resilient human rights culture and help pave the path to
Written by Vesselin Popovski, democracy. If  tailored to the specific needs and conditions of  a country, transi-
Johanna Stratton and tional justice is an important means to consolidate peace, promote human rights
Kalle Huebner and heal the wounds of  past wrongs. Significantly, transitions are usually complex,
random and lengthy. They typically evolve in an unmethodical way, as they are
© United Nations University, 2009
contingent on the social, political and legal forces that shape the process. The con-
ISBN 978-92-808-3075-0
ISSN 1814-8026 ditions in which the transition took place, for instance, whether it was a negotiated
Licensed under the Creative Commons or a forced transition, or whether the political context was one of  armed conflict or
Deed “Attribution-NonCommercial- authoritarianism, have direct implications on the justice and accountability process
NoDerivs 2.5” that may unfold.

Comparing the Effectiveness of Accountability Mechanisms in Eastern Europe and Latin America 1
“advancing knowledge for human security and development”

Diversity of Accountability productive, irrelevant or a waste of  pre-


Mechanisms cious resources.
The range of  mechanisms can be best
Is there a Best Approach?
understood when comparing cases in
various regions, as their deployment is A combination of  strategies, rather
limited in number for any single coun- than a piecemeal approach is more
try. Those seeking to implement a tran- likely to fulfil the needs of  a society

“Transitional justice processes should be carefully developed


in a way that is contextually appropriate and tailored to the
specific needs of a society.”
sitional justice process may determine for justice and bring significant results.
that the full range of  accountability Such a comprehensive approach should
mechanisms is not available to them, include both judicial and non-judicial
due to obstacles such as cost, expertise mechanisms. These can be top-down
and political will, or they may deter- initiatives that are typically state-
mine that certain mechanisms are not driven, such as institutional reform or
relevant or appropriate to the local adherence to the doctrine of  univer-
context. The choice of  accountability sal jurisdiction, as well as bottom-up
mechanisms is therefore informed by efforts that usually stem from civil
historical traditions, cultural values society demands for accountability.
and the limitations of  the domestic, Trials and other judicial proceedings,
legal and institutional environment in truth commissions, vetting or lustra-
which they will be implemented. tion, reparations and apologies, amnes-
There is no universal, standardized ties, memorialization, and institutional
approach for implementing transitional reform are among the common strate-
justice mechanisms given that condi- gies. The increasing use of  these world-
tions in each society are highly variable. wide attests to a broader accountability.
The transitional justice experience, and Much of  the literature on transi-
the suitability of  accountability mech‑ tional justice remains prescriptive and
anisms in any given country, is defined universalist and does not necessarily
by context-specific historical, politi- pay attention to whether transitional
cal, institutional, cultural, ideational justice policies are appropriate and
and international factors, and the way deal effectively with the past. While
in which these factors interact with acknowledging this and reflecting on
each other. What worked effectively accumulated lessons learned, there
in South Africa for example, may not is a growing consensus that the most
be successfully applied in Afghanistan. promising approach is a holistic one
Transitional justice processes should that addresses truth, justice and
be carefully developed in a way that is compensation issues, and seeks to
contextually appropriate and tailored strengthen democracy and the rule of 
to the specific needs of  a society. A law. Moreover, the role of  citizens in
formulaic or template approach should determining which mechanisms are
be avoided for risk of  being counter- best for their locality is critical, as this

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helps to promote a sense of  local owner‑ excluded from amnesty provisions.1
ship and responsibility. In Argentina, only high-level officers About the Authors
Tribunals and truth and reconcili- and several military commanders faced
Vesselin Popovski is Senior
ation commissions are often heralded prosecution in the courts; whereas a
Academic Officer at the UNU
as the most effective ways to implement truth commission that was established
Institute for Sustainability and
justice, and are regularly engaged as to investigate the widespread dis‑
Peace.
complementary mechanisms. Both are appearances following the military
based on the belief  that the public or coup of  1973, documented about 9000 Johanna Stratton is Academic
official exposure of  truth is a form of  cases and named a much broader range Programme Associate at the
justice in itself. Tribunals are judicial of  perpetrators. UNU Institute for Sustainability
bodies with the power to prosecute, and Peace.
try and sentence perpetrators of  past Assessing Effectiveness
Kalle Huebner is an Intern at the
crimes. By punishing those responsible This examination of  the comparative UNU Institute for Sustainability
for human rights violations, tribunals effectiveness of  accountability mechan‑ and Peace.
individualize guilt with the convic- isms requires a shared understand-
tion of  those most responsible for ing that “effectiveness” refers to the
serious crimes. In doing so, tribunals extent to which the mechanisms in
can achieve a retributive and deterrent question contribute to meeting certain
effect in a way that other mechanisms objectives, rather than a reference to
cannot. whether or not countries have been
Truth and reconciliation com- effective in the act of  setting up various
missions are most effective if  they are mechanisms. Moreover, it is a matter of 
independent statutory bodies that are identifying what the key stakeholders
institutionally strong, well-resourced seek to achieve by engaging in the pro-
both professionally and financially, cess of  transitional justice and demo-
representative of  the people, trans‑ cratic accountability. In the broadest
parent, credible and locally owned. sense, effectiveness relates to the goals
Their mandate is to investigate past of  reducing human rights violations
human rights violations and reconcile and promoting a culture of  human
the divided society through a process rights protection, consolidating demo-
that utilizes restorative justice tech- cratic institutions and accountability,
niques, and offers common narra‑ establishing social trust and peace with
tives of  a nation’s past. Commissions justice. Not only is there a need for
work towards the forgiveness of  justice, but there is a need for justice to
victims and the confession of  perpetra- be seen to be done, in order to promote
tors, and seek to integrate former rivals peace and reconciliation.
and achieve societal reconciliation as Such goals are ambitious and dif-
a basis for democratization. With the ficult to measure. Evaluating effec-
disclosure of  past abuses and the tiveness therefore involves making a
naming of  those accountable, com‑ comparison relative to a benchmark.
missions encourage victims to rebuild And yet, there is no consensus on how
trust in government and the demo- to empirically measure the progress
cratic system. The public exposure of  a justice process. Likewise, it is not
of  offenders can satisfy the demands possible to know the number of  poten-
for justice and pressure former elites tial incidents that can be deterred or
to cooperate and acknowledge their prevented by a mechanism, and factors
crimes, sometimes in exchange for such as forgiveness, reconciliation
amnesty, although international stand‑ and public awareness are equally
ards require that certain conduct is beyond calibration. We suggest three

Comparing the Effectiveness of Accountability Mechanisms in Eastern Europe and Latin America 3
“advancing knowledge for human security and development”

forms of  comparison in evaluating the historical and judicial truths are
effectiveness of  transitional justice pursued. The Slovenian transition
mechanisms: 1) comparison to the is an example of  a justice process that
ideal, 2) counterfactual reasoning, and has been described as “rule by con-
3) empirical comparisons. Thus, effec- sensus” between communist and post-
tiveness can be assessed by comparing communist regimes. However, the
the result to the perceived ideal out- negotiation of  justice that was accept-
come of  a mechanism, to the outcome able for both sides did not meet the
of  alternative mechanisms, and to the expectations of  the victims nor bring
achievements of  past cases in which up issues of  historical truth. Similarly,
similar mechanisms have been applied. Latin American transitions, such as

“Effectiveness can be assessed by comparing the result to the


perceived ideal outcome of a mechanism, to the outcome of
alternative mechanisms, and to the achievements of past cases
in which similar mechanisms have been applied.”

Enabling Conditions for that in Argentina, were partly negoti-


Effectiveness ated with the military which demanded
limitation of  prosecution against its
Agency and Power officers through legal acts such as the
Effectiveness is highly dependent on Full Stop Law and the Law of  Due
the agents who implement the mechan‑ Obedience.
isms. To what extent have the newly Slovakia demonstrated the criti-
elected authorities agreed to, and cally important role that leaders may
the collective society made demands play in affecting the nature and effec-
for, justice to address legacies of  past tiveness of  accountability mechanisms,
human rights violations? A clearly as well as reshaping opinions of  legiti-
manifested public expression for justice mate governance. Elites with ties to
and accountability can serve as a strong the former regime inhibited the transi-
motivating force for the government to tional justice process by exercising their
adopt a comprehensive set of  mechan‑ democratically acquired political
isms and policies. power, against a background of  wide-
Other key factors include the spread indifference and/or passivity
balance of  power and the nature of  regarding transitional justice issues,
the country’s political and moral leader‑ such as secret police repression. In
ship, particularly the influence and spite of  this, Ján Langoš, (the first
legitimacy of  old elites. The dynamics post-communist Czechoslovak Interior
between old and new political actors Minister) who seemed to lack insti-
is of  critical importance as it informs tutional and popular support, pushed
whether a transition is enforced or through legislation that made truth
negotiated, and the degree to which revelation possible. In Slovakia this

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kind of  initially lonely leadership might or “clients” of  transitional justice are
be more effective with regard to truth satisfied with outcomes is a subjective,
revelation than mechanisms such as yet decisive measure of  the effective-
prosecutions or vetting, as it requires ness of  accountability mechanisms.
less active and ongoing cooperation
from a large number of  individuals in Timing
the judicial and executive branches of  Time is also a significant factor of 
government, many of  whom may be effectiveness. In the case of  trials in
unsupportive of  such justice. particular, the challenge is to engage
The victims and survivors of  the justice process while evidence is
human rights abuses are important available and memories are fresh, but
agents, as their priority is to call into to avoid overly expeditious and harsh
effect accountability mechanisms that responses that deviate from the rule of 
adopt a victim-centred approach. An law – particularly the principle of  due
active civil society functions as a key process. For example, the rapid quasi-
enabling factor for effectiveness. For trial and execution of  the Romanian
example, in 1999, the House of  Lords dictator Nicolae Ceauşescu and his
– at the time the highest appeal court wife in 1989, or the flawed trial and
in the United Kingdom – was forced to hanging of  Iraqi dictator Saddam
make a pronouncement on a theoreti- Hussein in 2006, seemed to be
cal principle of  universal jurisdiction more akin to legalized vengeance
which had not yet been tested, thanks than fair trials. Grave human rights
to the mobilization efforts of  relatives abuses require timely prosecution, as
of  victims of  human rights crimes in detailed evidence of  atrocities may be
Chile. Similarly, the Nunca Mas publi- destroyed, lost or difficult to recon-
cation, initiated by anonymous citizens struct. The old age and ailing health
during the dictatorship in Brazil, is an of  perpetrators who are not able to
example of  a bottom-up initiative that stand trial after drawn out or belated
named over 440 torturers and pre- legal proceedings is another temporal
vented them from returning to public consideration. In many cases, serious
office. As key stakeholders, as well as crimes of  post-war and Stalinist rule
beneficiaries of  a transitional justice in Eastern Europe were not addressed
process, the efforts of  victims, survi- with criminal justice mechanisms as
vors and their supporters intensified alleged offenders were either deceased
pressure on authorities to carry out fact or unfit to stand trial, or cases had
finding, reveal information on the fate exceeded the statute of  limitations.
of  loved ones, provide opportunities Although there are benefits to early
for grievances to be heard and validated engagement in transitional justice, the
(such as the provision of  reparations process of  choosing and implementing
and restitution) and for legal and insti- the mechanisms should not be rushed
tutional reforms to be implemented in or imposed. Experiences from Latin
order to prevent atrocities in the future. America suggest that the pursuit of 
Often, the demands of  civil society justice may be deferred for many years,
actors for justice go hand in hand with but can become feasible at a time when
claims for fair elections and democracy, political circumstances are more con-
thus paving the way for the consolida- ducive. Soon after transition in Chile,
tion of  democratic institutions. Given the new authorities were constrained
this, the extent to which “beneficiaries” legally by an amnesty decree and politi-

Comparing the Effectiveness of Accountability Mechanisms in Eastern Europe and Latin America 5
“advancing knowledge for human security and development”

cally by the former dictator Augusto a misappropriation of  funds or a sense


About this Policy Brief Pinochet’s influence as commander-in- of  dissatisfaction with the amount of 
chief  of  the army until March 1998. money spent versus the result gained
This policy brief draws on the
While there was no significant shift can have a negative impact on pro-
results of the research project
in the legal environment, things began ceedings in other countries, or even in
“Transitional Justice and Demo-
to change rapidly with two truth com- the future. The ad hoc International
cratic Consolidation: Compar-
ing the Effectiveness of the
missions being established in 1991 and Criminal Tribunals for the Former
Accountability Mechanisms in 2005, many initiatives on symbolic Yugoslavia and for Rwanda and the
Eastern Europe and Latin Amer- and monetary reparations being put in hybrid Special Court for Sierra Leone
ica” which is jointly organized place, and the judiciary becoming more were criticized for being too expen-
by El Colegio de México and active in prosecuting those responsible sive. Some suggest that the amounts
the United Nations University for human rights abuses. spent on the prosecution of  perpe-
Institute for Sustainability and Indeed, the window of  opportunity trators should have been distributed
Peace, in association with the for truth revelation does not necessar- among the victims; this also highlights
University of Oxford. A book, ily close quickly, even if  transitional another problem – that these tribunals
edited by Vesselin Popovski and justice initiatives have been delayed. do not provide funds or procedures for
Mónica Serrano, is forthcoming Mechanisms such as historical archives, compensation of  victims. The South
with the following authors: memorials, museums and the work of  African Truth and Reconciliation
Alexandra Barahona De Brito
truth commissions are less time sensi- Commission made a significant con-
Carlos Basombrío Iglesias tive than trials, and can be effective tribution to the bloodless transition to
James Cavallaro even decades after a transition. Even democracy, but it incurred problems
Pilar Domingo today, the German Office of  the Fed- when it failed to pay promised compen-
Claudio Fuentes eral Commissioner reveals new insights sation. Cost is indeed one reason for
Maria Patricia González into past human rights abuses by the looking at other models of  justice and
Hristo Hristov former East German secret service that enforcing international humanitarian
Alexander Kashumov spark heated public debate in German law. Conversely, not spending enough
Ernesto Kiza society, almost two decades after tran- to deter future crimes may result in
Nadya Nedelsky sition. the need to expend greater financial
Monika Nalepa The assumption that once a coun- resources at a later date.
Kathryn Sikkink try’s socio-political context changes, a
Catalina Smulovitz certain amount of  time elapses which Justice Sector Reform
Lavinia Stan creates an insurmountable barrier to Justice sector reform is crucial for
Mitja Steinbacher transitional justice initiatives is seri- improving the effectiveness of  account-
Elvira Maria Restrepo ously challenged both by the efforts of  ability mechanisms. In order to achieve
Carmen Rosa de León successive generations in countries like some level of  judicial accountability,
Moritz Vormbaum Guatemala, Chile and Argentina and courts should be receptive to cases
Gerhard Werle also by the recursive nature of  account- dealing with past human rights abuses,
Laurence Whitehead ability mechanisms deployed in several and be minimally credible and capable
Eastern European states, where recent of  guaranteeing a measure of  due pro-
tensions compete for attention with cess. Members of  the judiciary may, in
abuses from the communist period and turn, be positively affected in terms of 
those from the second world war. their own interpretation of  the law
vis-à-vis human rights cases by develop-
Cost ments in transitional justice initiatives.
Effectiveness is typically measured by The thickening of  norms, rules and
the barometers of  time and money in institutions at the domestic, regional
the business world. In this analysis, and international levels are also likely
money is certainly a relevant factor as to have an impact on the attitudes

6 Policy Brief
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and legal culture of  judges, and this Policy Recommendations for
is increasingly true in the wake of  the Effective Implementation
third wave of  democratization, and the ■ Transitional governments and new
post-cold war era. The deliberate and authorities should consider the high
global effort to strengthen the rule of  cost of  impunity, the consequences
law through various forms of  justice of  failing to punish atrocious crimes
sector reform in recent years has helped committed by prior regimes on a
to spread acceptance and adoption of  sweeping scale and their duty to safe-
the idea of  universal norms of  human guard against future violations by
rights worldwide. Countries where the prosecution of  past crimes;
rule of  law is well observed are more ■ Responses to massive human rights
likely to provide an environment that violations should be integrated
is conducive and supportive of  various and holistic, but also balanced with
transitional justice initiatives, which in victim-sensitive and culture-sensitive
turn improves their likelihood of  being approaches;
effective. ■ Informed and pragmatic discourse,
incorporating expertise and best
Limits to Effectiveness
practices, and obtaining independ‑
Activating mechanisms of  transitional ent people’s opinions (through
justice raises significant practical dif- civil society involvement) should be
ficulties. Often, new governments are conducted;
unwilling to accept far-reaching initia- ■ Justice should be de-politicized
tives that might have unforeseen conse- with the transitional process given
quences for their own legitimacy or for broader legitimacy;
the stability of  the political system at ■ Key institutions, especially the
large. Even if  political will exists, there justice sector, should be created or
may not be sufficient judicial capa‑ reformed;
city to prosecute thousands of  alleged ■ Justice and accountability should be
perpetrators, especially given that delivered by national actors; when
transitional court systems are weak needed, independent international
and prone to corruption. And the com- actors may help with expertise, skills
pensation of  large numbers of  victims and training.
may exceed the resilience of  transi-
tion economies. Notably, the choice of  Note
appropriate mechanism is highly criti-
cal. The prosecution of  a small number 1)  Amnesty may not be granted for conduct
amounting to the international crimes
of  perpetrators, for example, might be of  genocide, crimes against humanity,
seen as political revenge if  there is no war crimes, or gross violations of  human
effort to establish non-judicial mechan‑ rights.
isms such as a truth commission or a
victim compensation scheme. Further-
more, mere compensation can be seen
as an attempt to buy the silence of  vic-
tims. Truth-telling may seem an empty
exercise if  abusers are not challenged
and if  there is no element of  retribu-
tion present.

Comparing the Effectiveness of Accountability Mechanisms in Eastern Europe and Latin America 7
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“advancing knowledge for human security and development”

INSIDE:

Policy Brief
“Advancing Knowledge for Human Security and Development” Comparing the
The United Nations University is an organ of the United Nations Effectiveness of
established by the General Assembly in 1972 to be an international
community of scholars engaged in research, advanced training, and the Accountability
dissemination of knowledge related to the pressing global problems
of human survival, development, and welfare. Its activities focus
Mechanisms in
mainly on the areas of peace and governance, environment and Eastern Europe and
sustainable development, and science and technology in relation to
human welfare. The University operates through a worldwide network
Latin America
of research and postgraduate training centres, with its planning and
coordinating headquarters in Tokyo.

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