Re-Ordering Justice: Towards A New Methodological Approach to Studying Transitional
Justice
Author(s): BRIAN GRODSKY
Source: Journal of Peace Research , november 2009, Vol. 46, No. 6 (november 2009), pp.
819-837
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journal of ? The Author(s), 2009. Reprints and permissions:
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vol. 46, no. 6, 2009, pp. 819-837
Sage Publications (Los Angeles, London, New Delhi,
RESEARCH Singapore andWashington DC) http:lljpr.sagepub.com
DOI 10.1177/0022343309340108
Re-Ordering Justice: Towards A New
Methodological Approach to Studying
Transitional Justice*
BRIAN GRODSKY
Department of Political Science, University of Maryland, Baltimore County
Scholars and policymakers have turned increasing attention to questions of transitional justice, those
legal responses to a former regime's repressive acts following a change in political systems. Although
there is a rich, interdisciplinary literature that addresses the value of various transitional justice meas
ures, theoretical arguments for how and under what conditions we should expect to see these measures
implemented tend to gravitate to intuitively appealing relative power considerations. But attempts at
parsimony have tended to leave the dependent variable either overly restrictive or poorly defined, yield
ing theories that are difficult to test. In this article, the author proposes a 'transitional justice spectrum'
based on a hierarchical series of possible accountability mechanisms and designed to allow research
ers to conduct more rigorous, cross-national tests of justice arguments. The objective here is not to
posit a broad theory of transitional justice, but to open the debate into a methodological weakness in
the transitional justice literature. The article includes seven accountability mechanisms: cessation and
codification of human rights violations; condemnation of the old system; rehabilitation and compensa
tion for victims; creation of a truth commission; purging human rights abusers from public function;
criminal prosecution of 'executors' (those lower on the chain-of-command); criminal prosecution of
commanders (those higher on the chain-of-command).
Introduction
Over the past 15 years, scholars and policy
makers have turned increasing attention to
questions of transitional justice, those legal
responses to a former regime's repressive acts
following a change in the political system.
Although a rich, interdisciplinary literature
addresses the value of various transitional jus
tice measures, theoretical arguments concern
ing how and under what conditions we should
expect to see these measures implemented
* I would like to thank JPR Associate Editor Anne Julie
Semb, reviewer Eileen Babbitt, an anonymous reviewer,
and Devin Hagerty for their very helpful comments on
earlier drafts of this article. Correspondence: bgrodsky@
umbc.edu.
are limited. The current literature, born as
oppressive regimes from Latin America to
Eastern Europe began to fall in the 1970s
and 1980s, evolves around intuitively appeal
ing relative power considerations. But
attempts at parsimony have frequently left
the dependent variable either overly restrict
ive or poorly defined, yielding theories that
are difficult to test. In this article, I propose
a 'transitional justice spectrum' based on a
hierarchical series of possible accountability
mechanisms and designed to allow research
ers to conduct more rigorous, cross-national
tests of transitional justice arguments.
This article is not intended to posit - or
directly refute - a broad theory of transitional
justice, a task that even the most renowned
819
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820 journal of VEACE RESEARCH volume 461 number 61 november 2009
scholars have declared extraordinarily diffi
cult (Elster, 2004). Rather, it is meant to
open a debate into a methodological issue:
how best to test existing and future theories.
The transitional justice spectrum is intended
to serve as a yardstick to assess causality in
transitional justice decisionmaking, an ana
lytical tool that will impose greater clarity
on what, and subsequently how, transitional
justice researchers are measuring.
I begin by explaining the accountability
dilemma (why new elites should support or
eschew accountability policies) and reviewing
arguments concerning determinants of tran
sitional justice. I focus on the central argu
ment in the literature, which contends that
the relative strength of new and old elites is
the primary determinant of accountability
policy. I then elaborate on a mechanism
that can be used to test this and other transi
tional justice causal theories. Finally, I briefly
discuss ways this spectrum can be used.
Transitional Justice: Determinants
of Action
Transitional justice scholars frequently
approach their subject equipped with legal
and normative arguments for why new elites
might pursue various forms of accountability
(Vinjamuri & Snyder, 2004). One under
lying theme is the need for the new state
to acknowledge the former regime's role in
human rights abuses. A lack of exposure may
preclude society from reaching a consensus
on the historical wrongs and therefore dam
age attempts to form a new societal bond
(O'Donnell & Schmitter, 1986: 30). Hayner
(2001: 27) highlights the important role per
ceptions of 'truth' play in a stratified, post
transition society, suggesting that disparate
versions of a country's repressive history
fuel political tensions that may turn violent.
Indeed, this fear has proven legitimate in
countries such as Rwanda and Yugoslavia,
where recent cases of massive rights violations
were at least partly rooted in historic abuses.
By individualizing blame, accountability
policies can end the 'dangerous culture of
collective guilt' that contributes to long-term
instability (Kritz, 1996: 128).
With respect to democratic consolida
tion, transitional justice proponents argue
that accountability signals the start of insti
tutional reforms, demonstrates that all citi
zens are liable under the same law, and can
encourage public support for previously
absent democratic values, such as equality
and participation (Crocker, 1999: 47-54;
Graybill, 1999: 5; Huntington, 1991: 213;
Jaspers, 1995: 198-199). Justice can help
forge a common historical understanding,
demonstrate new elites' institutional disap
proval of rights violations and even enable a
new government to enhance its own legitim
acy by constructing a wall between itself and
the former regime (Jaspers, 1995). Criminal
prosecutions may satisfy victim demands
and clear the way for otherwise unattainable
victim compensation (Landsman, 1996: 82)
and might deter future leaders tempted by
injustice (D'Amato, 1994: 503). Even a
relatively moderate accounting, however,
may lead to political instability (O'Donnell
& Schmitter, 1986). Though legal scholars
question the legitimacy of potentially
unpopular blanket amnesties (Burke-White,
2001: 13; Hayner, 1996b), risks, ranging
from military coups to social divisiveness and
civil war, may prompt new elites to abandon
private preferences for harsh accountability
(Zalaquett, 1992: 1431).
These risks have for centuries forced polit
ical elites to wrestle with whether to punish
or forgive members of oppressive regimes
(Elster, 2004). Contemporary debate can be
traced back to the immediate post-World
War II period, when the victorious Allied
forces applied still-evolving international
judicial norms to vanquished powers accused
of heinous war crimes (Teitel, 2003). The
Nuremberg and Tokyo trials were a leap in
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Brian Grodsky Transitional Justice 821
international human rights, but they took
place under 'exceptional political conditions'
(Teitel, 2003: 70) that quickly disappeared.
During the Cold War, bipolar power strug
gles eclipsed the nascent transitional justice
movement (Evans, 1996). As harsh authori
tarian regimes in Latin America, Africa, and
Southern and Eastern Europe fell in the
1970s and 1980s, incoming elites sought to
balance the norms of justice that emerged in
the post-war era with political constraints
present in the absence of all-out military
victory. Retributive measures, such as mass
criminal trials, were frequently replaced with
more lenient policies, including blanket
amnesties and truth commissions.
Perhaps as a result of these systemic observa
tions, various theoretical arguments designed to
identify key determinants of, or impediments
to, pursuing justice in post-repressive states
are bound by a common thread: a focus on
the relative power of incoming and outgoing
elites (Aguilar, 2001: 99; Barahona De
Brito, Gonzales-Enriquez &C Aguilar, 2001:
11; Benomar, 1995: 41; Huyse, 1995: 63;
Roehrig, 2002: 199; Sieder, 2001: 162;
Sutter, 1995: 121; Zalaquett, 1992: 1432).
While these arguments include a range of
independent variables, relative power tends to
operate as a trump card where the greater the
relative strength of the old elites compared
to the new, the less likely we should see new
elites pursue 'harsh' forms of justice (Huyse,
1995:78).
Strands of this relative power hypothesis
are differentiated by definitions of power and
underlying processes. Huntington's widely
cited political elite level typology explains
transitional justice as a function of top-level
political power as mediated by the transition
process from authoritarian rule to democ
racy (Huntington, 1991: 230-231). Elites
rising to power through revolution are most
likely to implement harsh forms of retribu
tive justice, since the former regime's power
base (and ability to meddle in the new state)
is presumably destroyed. By contrast, new
regimes empowered following a negotiated
transition or old elite-led transformation
(where authoritarian leaders control the
speed and character of change to democracy)
often give explicit or implicit amnesties to
members of the still-powerful old regime
and should therefore show restraint in the
accountability sphere.
Other scholars adhering to the relative
power logic define power more broadly, taking
into account state structures. O'Donnell &
Schmitter (1986: 28), for example, empha
size the continued presence in key power
ministries of those actors complicit in prior
abuses. In the South American context, the
military is particularly relevant; in Eastern
Europe, the police and secret services might
receive more attention (Rosenberg, 1995).
Loyalties to the old regime and potential
feelings of complicity among members of
the state apparatus could impair a new elite's
capacity to rule, much less engage in transi
tional justice.
Finally, others apply an even broader defin
ition of power, based on public support.
Zalaquett (1995), for example, introduces
the role of non-elites, arguing that a state's
social (e.g. ethnic, religious) structure may
preclude certain types of justice that could
antagonize intrasocietal relations. Some also
consider the role of memory and temporal as
well as qualitative aspects of past rights abuses
(Aguilar, 2001: 97; Elster, 2006: 11; Huyse,
1995: 71-73; O'Donnell & Schmitter,
1986: 30; Pion-Berlin, 1994). Dangers of
transitional justice are more than elite-based,
with potential immediate consequences out
side of the official realm. Even Huntington,
despite his succinct typology, acknowledges
this, referring frequently to referenda and
quoting one Romanian government official
as saying, 'If we publish the [secret police]
files as some people have suggested, there
could literally be something worse than a
civil war with friend turning against friend
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822 journal of Peace research volume 461 number 61 november 2009
once they find out what is contained in
them' (Huntington, 1991: 230).
While these arguments all look at justice
as a function of power, they differ with
respect to who determines the relative power
of old and new, as well as with regard to the
implicit or explicit mechanisms that make
relative power a serious constraint. Support
ers of Huntington's political elite argument
seem to stress normative aspects of the bar
gaining process but also, like state structure
proponents, imply the risk of a coup or failed
state (marked by the inability of new elites
to implement policies) where relatively weak
new elites pursue retributive justice upsetting
to the old guard. By contrast, those focused
on societal conditions warn that aggressive
justice could prompt civic unrest and even
civil war depending on attitudes, and per
haps level of complicity, of broader society.
Ultimately, however, each argument focuses
on new elite's fears that powerful elements
implicated in yesterday's rights violations
can destabilize the political sphere if they
perceive justice policies as threatening.
These various relative power arguments all
point astutely to potential risks of transitional
justice, but each comes with a set of potential
weaknesses. Challengers to elite-level argu
ments might ask why post-oppositionists
should respect deals made through arm
twisting by illegitimate outgoing elites, par
ticularly in cases where new elites quickly
and democratically accrue more political
power than predicted by transition type.
While state structure explanations address
this, they leave unaddressed important ques
tions about the cohesiveness of subpolitical
actors, most of whom were probably not
directly complicit in past violations. Structur
alists also side-step the issue of mass partici
pation in the initial regime change, a factor
that may embolden post-oppositionists. The
most obvious weakness of public attitude
explanations is, as with the preceding strains
of relative power, a lack of elasticity. Are
public attitudes non-malleable, structurally
determined by experiences and perceptions
of past injustices? Or are they more dynamic,
influenced by perceptions of present govern
mental successes and failures (Holmes, 1994:
34; Walicki, 1997), or even subject to elite
persuasion (Jacobs et al., 1998; Koch, 1998;
Powlick, 1991)?
The purpose of raising these weaknesses is
not to directly challenge these theories but to
suggest the need for more vigorous scrutiny.
The shortcomings described demonstrate the
types of holes and inconsistencies prone to
fester in theories not tested using clear meas
ures of validity. Indeed, perhaps because of the
natural appeal of relative power explanations,
scholars frequently defend them by largely
anecdotal evidence. Huntington, for example,
evaluates his popular argument by referring
to a range of cases, from the Philippines to
Romania, that 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 (Huntington,
1991: 211). According to Huntington, the
transitional justice policies of Uruguay's new
leaders, who came to power through nego
tiations, were severely constrained by the
prevailing power of military leaders who first
promised to obstruct criminal prosecutions
and then made threats in order to (success
fully, Huntington says) influence a public
referendum on the subject (Huntington,
1991: 226-229). 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 military leaders assured themselves
by handing over power.
Instructive as this study is, Huntington is
guilty of over-simplification, resting his theory
that across cases 'justice was a function of pol
itical power' (Huntington, 1991: 228) on the
observation of only two aspects of justice,
criminal prosecutions and truth commissions.
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Brian Grodsky Transitional Justice 823
Even arguments intended to look beyond
relative power frequently revert to this binary
indicator. Huyse (1995:76), for example, con
cludes that 'the need to avoid confrontation'
prompts new elites to exchange criminal pros
ecutions for truth commissions as the least
unsatisfactory solution' (Huyse, 1995: 78).
Sieff & Wright (1999: 759), who argue that
relative power sets the parameters for the
application of the norms of justice', similarly
conclude that if new elites believe peace and
justice are reconcilable they will prosecute,
but otherwise they will opt for truth commis
sions (Sieff & Wright, 1999: 769). This focus
on the 'usual suspects' of transitional justice
(criminal trials, amnesties or truth commis
sions) is problematic. First, these terms may
marginalize other justice measures that have
been used (perhaps successfully) by polit
ical elites around the world. Indeed, scholars
have explored the pros and cons of a gamut of
intermediate policies, including public apolo
gies, victim compensation, and banning per
petrators from public office (Crocker, 1999;
Gibney & Roxstrom, 2001; Kritz, 1996;
Minow, 1998: 23; Reilly, 2002).
More importantly, underspecification of
the dependent variable makes it difficult to
produce hypotheses and empirical observa
tions that succinctly correlate power to jus
tice 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 pros
ecutions, this does not provide strong evi
dence that justice is a function of power - only
that one type of justice appears to be affected
by this particular independent variable. If
transitional justice policies are a function
of relative power, it seems both the primary
independent variable (old-new elite power)
and dependent variable (justice type) should
be defined incrementally. If, for example, we
begin doing this and concede that prosecu
tions and administrative purges are 'harsher'
than truth commissions, then relative power
proponents might expect a weak new elite
leadership to launch truth commissions
rather than prosecutions or purges. But what
if, for example, the new leadership instead
conducts purges but finds itself unable to
launch an independent truth commission
(as was the case, for example, in some post
communist states)? This may be suggestive
that something other than (and perhaps
exclusive of) relative power is at work. By
specifying the dependent variable, we estab
lish clear expectations that can be evaluated
systematically and objectively.
Scholars addressing the broad range of
transitional justice options to date tend
to refrain from outlining a clear policy
hierarchy (Minow, 1998: 23; Reilly, 2002).
Rankings tend to be restricted to the obvi
ous, when discussion touches on only two
or three policy options (especially blanket
amnesties, truth commissions, and criminal
prosecutions) and general policy guidelines
remain limited to the 'how to', rather than
'when to' or 'when not to', of one specific
accountability policy (Hayner, 1996b;
Landsman, 1996). Authors are clearly cog
nizant of the different risk levels involved
in the policy options, but there has been no
attempt to systematically address this. Yet,
without explicitly defining the dependent
variable in ways that allow one to measure
risk, it is difficult to have confidence in the
widespread consensus that relative power is
the key determinant of justice.
Vagueness of the dependent variable there
fore renders relative power arguments obtuse,
perhaps prompting skeptical authors to chal
lenge them by positing new arguments
rather than explicitly identifying evidence to
reject the prevailing ones. Moran, for exam
ple, found little support for relative power
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824 journal of PEACE RESEARCH volume 461 number 61 november 2009
arguments in Central Europe, arguing instead
that justice is influenced by psychological
determinants based on die degree to which
opponents in the former system could voice
their opposition or emigrate (Moran, 1994).
In an analysis of three Latin American states,
Pion-Berlin (1994) found that while the
nature of rights violations and relative power
issues set the boundaries for political action,
elite preferences and strategic calculation
shaped concrete policy outcomes within these
confines. The fact that these arguments seem
to have had little resonance in the transitional
justice literature may result from the grow
ing belief that there is no single determinant
(Elster, 2006), but it may also follow from the
difficulty in explicitly taking on the prevailing
argument without adequate instruments.
Transitional Justice Spectrum
The goal of this section is not to challenge
the relative power argument per se, but to
suggest ways of testing it and other theor
etical arguments concerning transitional
justice. The first step towards this objective
involves specifying the dependent variable,
accountability mechanisms available to a
new regime. There exists a range of possible
actions that leaders can undertake to pursue
accountability for human rights violations.
Through a review of the democratization and
transitional justice literatures, I have identi
fied seven frequently used policies and placed
them in a 'transitional justice spectrum'.
These mechanisms are ranked by the degree
to which they personalize responsibility, as
well as by the severity of each policy's reper
cussions for the perpetrators. These measures
co-vary early in the spectrum, but after stage
four, when concrete individuals are already
targeted, severity increases independently.
(1) Cessation and codification of human
rights violations;
(2) Condemnation of the old system;
(3) Rehabilitation and compensation for
victims;
(4) Creation of a truth commission;
(5) Purging human rights abusers from
public function;
(6) Criminal prosecution of executors'
(those lower on the chain-of-command);
(7) Criminal prosecution of commanders
(those higher on the chain-of-command).
The logic of the spectrum is twofold. Most
broadly, it organizes justice mechanisms
along a continuum that gradually proceeds
from restorative (alleviating victims' pain)
to retributive (punishing perpetrators).
At the same time, and not coincidentally,
this spectrum incorporates a relative power
logic, since each incremental step up the
accountability ladder involves implementa
tion of a more provocative, or threatening,
policy, with respect to members of the old
regime. This spectrum operationalizes risk
in ways that should explicitly allow justice
scholars to observe strengths and weak
nesses of relative power arguments, which
should dictate the highest level of account
ability feasible for a new leadership. In the
straightforward case of Huntington, for
example, we should find weak regimes (e.g.
those handed power by old elites) to go
no further than stage 1; moderately strong
regimes might pursue up to stage 4; and
only the strongest regimes (e.g. those aris
ing out of revolution) should pursue stages
5 through 7. In cases where these expec
tations are not met, use of this spectrum
might suggest other determinants. In my
own research (described below), I used elite
interviews, in which I questioned how and
why each of these measures was or was not
applied, to generate and test alternative
theories.
In the remainder of this section, I describe
each step on the proposed spectrum, includ
ing a brief discussion of the measure's pros
and cons, a theoretical rationale for its risk
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Brian Grodsky Transitional Justice 825
assessment rating and a series of examples
illustrating how this measure has been carried
out in practice, as well as the threats associ
ated with it. It is important to emphasize that
while readers may disagree with the specific
ordering of these measures (e.g. preferring to
switch stages 2 and 3 or 6 and 7), this should
not detract from the use of this spectrum
as a general tool. Moreover, such disagree
ments - and especially empirical evidence to
back them - should generate further discus
sion that might strengthen future versions of
this instrument.
I. Cessation and Codification of Human
Rights Violations
In a democratizing state, one basic task for
the new regime is to halt rights violations.
New leaders can codify the most brutal
rights violations orchestrated by previous
political elites by signing, ratifying, and
integrating into domestic law major inter
national human rights conventions. On the
international stage, external states often
base future cooperation on their potential
partner's reputation information (how they
upheld past international commitments,
including those in the human rights sphere)
(Donnelly, 1986: 608; Fearon, 1998; Gelpi,
1997; Putnam, 1988). The heavy invest
ment (e.g. long process) involved in treaty
negotiation and ratification is also sugges
tive that participating parties intend to
remain true to their promises (Chayes &
Chayes, 1993). Indirectly, international
treaties can alter a signing state's political
institutions as subunits of different govern
ments come together in treaty monitoring
bodies, where conflicting loyalties to the
home state and treaty mission become fluid,
even resulting in new coalitions that influ
ence a state's home capital rather than the
reverse (Burley & Mattli, 1993; Keohane &
Nye, 1974). Ratification of international
rights agreements can also alter internal
political opportunity structures, emboldening
opposition groups and expanding their
collective action 'repertoire' in ways that
make them more formidable opponents
to potential rights violators (Pharr, 1990;
Tarrow, 1991, 1994).
Because cessation and codification of vio
lations involves exclusively positive steps,
without indirectly or directly confronting old
power holders or rights abusers who linger
in the state apparatus, this measure is essen
tially risk-free. The cessation of rights viola
tions and adoption of international rights
norms mark a new course in a country's poli
tics but do not personally threaten the old
power holders. New political elites do not
confront (either directly or indirectly) those
complicit in past abuses, yet they ensure pro
accountability forces in society that their
most essential judicial needs are met.
A review of signatories to the Inter
national Covenant on Civil and Political
Rights (ICCPR), the ICCPR's first proto
col allowing the Human Rights Commit
tee to accept private citizen complaints, and
the Convention against Torture suggests
that incoming regimes do use international
human rights agreements to signal a new
era of liberty (UNHCR, 2004). During
a major period of liberalization in Algeria
(1989), for example, the country's new lead
ers passed all of these agreements in a three
month span. A similar pattern is clear in
such diverse states as Angola (1992, as the
country embarked on multi-party elections),
Sudan (1986, just after the fall of President
Numeiry), Argentina (1986, following the
country's 'dirty war'), and Benin (1992,
following democratic elections that ended
decades of military rule). Soon after the fall
of communism, most former Soviet and East
Bloc states signed on to at least one human
rights convention protecting political rights
formerly denied. That so many associated
with previous rights abuses pushed for the
codification of these guarantees is evidence
of the low risk of this stage.
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826 journal of PEACE RESEARCH volume 461 number 61 november 2009
II. Condemnation of the Old System
The exclusively positive nature of stage 1 is
supplanted by a broad and impersonal attack
in the form of a general declaration of con
demnation of the old system. This can take a
variety of shapes, from parliamentary laws and
resolutions to public speeches by high-level
government officials. The goal, according to
Jaspers (1995: 198), is to make 'a clear dis
tinction between the transitional government
and the previous regime'. Formal condemna
tion of, or apology for, past abuses is typically
seen as restorative, a first step towards soci
etal reconciliation (McGregor, 2001). But
condemnation also serves a mild retributive
function, the gateway to culpability in which
groups are implicated in past misdeeds.
Despite sharing some retributive charac
teristics, new elites at this early stage of cen
sure avoid threatening their predecessors by
condemning the system rather than specific
actors, The unpleasantness of political humi
liation is in some ways diminished by pre
existing societal awareness of abuses (Kritz,
1996). Perhaps more importantly, members
of the old elite remain generally protected by
ambiguity and their own capacity to explain
away their personal roles (Payne, 2001). Gray
masses from repressive bureaucracies can off
set responsibility by claiming to be cogs in the
machine, personally unaware of what was ulti
mately being churned out.
The increased weight of condemna
tion (relative to the mere codification of
rights violations) is demonstrated by the
fierce resistance states put up to impersonal
rebukes of their countries on the interna
tional stage (Cain, 1999; Donnelly, 1988).
At the United Nations, for example, Security
Council resolutions with no legal enforce
ment power are protested in tense debates,
walkouts, and even official vetoes (IPNSA,
2004). On the domestic stage, condemna
tion may be met with tolerance or repen
tance on the side of the condemned, but it
can also draw negative reactions (Gilligan,
2003; Lindner, 2001). Only after six years of
debate did Spanish right-wing parties finally
agree in 2002 to an embarrassing resolution
condemning the rule of dictator Francisco
Franco, who had died more than 20 years
earlier (Aguilar & Humblebaek, 2002: 132).
Argentinean ex-general and former ruler
Jorge Videla, sentenced to life imprisonment
in 1985 for his role in murders, abduction,
and torture, was indignant when pardoned
five years later, calling for 'the army's vindi
cation and the reparation of military honors'
{Toronto Star, 1991). In each case, affiliates
of the former regime denied wrongdoing and
resisted public rebuke.
III. Rehabilitation and Compensation
for Victims
Rehabilitation, including the annulment
of sentences issued in the context of polit
ical repression, and compensation are two
restorative measures aimed at improving the
lives of former victims (Posner & Vermeule,
2004). Like condemnation, they can also
mark a break with the past. Rehabilitation
involves returning full civil rights to those
unrightfully persecuted, whether practically
(for those still alive) or symbolically. Because
compensation requires potentially heavy
state financial allocations, it may be more
costly and controversial. Scholars argue that
fiscal measures can help 'right' past wrongs
materially as well as symbolically (Crocker,
1999: 51), and some go so far as to argue that
victims' 'well-being should not be sacrificed
in the interest of national reconciliation'
(Landsman, 1996: 86). Intergovernmental
organizations have claimed post-repressive
states are obliged to provide legal and finan
cial redress to former victims (CE, 1996;
UN, 1993, 1996).
In contrast to vague condemnations, rehabili
tation and compensation may be seen by affili
ates of the former regime as a step towards
personal accountability. If this family suf
fered, who inflicted the pain? Perhaps for
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Brian Grodsky Transitional Justice 827
this reason, the commander-in-chief of the
Chilean navy rejected a presidential promise
to provide reparations as a 'foolish and offen
sive way of dealing with established concepts
and rules such as security, intelligence, due
obedience and others' (BBC, 1991a). Simi
larly, when the Spanish right-wing Popular
Party finally agreed to legislation condemn
ing Franco-era totalitarianism, it continued
to oppose clauses mandating rehabilitation
and reparations for Franco's political pris
oners (Aguilar & Humblebaek, 2002: 132).
Political liability inherent in public expen
ditures (Simpson & van Zyl, 1995) has
prompted politicians from Sri Lanka (Rees,
1990) to Czechoslovakia (Green, 1990) to
water down compensation measures or cre
ate legal obstacles designed to reduce the
number of beneficiaries. The Argentinean
government in 1992, for example, prom
ised to compensate former convicts of mili
tary courts but not judicial courts and other
categories of victims (Chaudhary, 1992).
This may serve a dual function, since associ
ates of the old regime sometimes balk at the
notion that the rules they helped create or
enforce were somehow wrong (Kalisz, 2003;
Paprzycki, 2003).
IV. Creation of a Truth Commission
Truth Commissions, or officially sanctioned,
temporary bodies established to clarify past
abuses, are frequently cited as a 'third way'
between criminal prosecutions and blanket
amnesties (Hayner, 1996a, 2001; Sieff &
Wright, 1999). Truth commissions perform
several functions, from providing an environ
ment in which victims and/or perpetrators
can tell their stories to supplying an official
forum for 'a meaningful acknowledgment
of past abuses' (Kritz, 1996: 138). Com
missions can be public or private, aggressive
or passive, empowered with legal rights of
forgiveness (amnesty) or deprived of legal
authority. They can be functional (estab
lishing official records of death necessary for
relatives to attain benefits) or metaphysical
(generating open discussions intended to ease
tensions; Hayner, 2001). Hearings are often
victim-oriented, providing what Crocker
calls a 'public platform for victims' where
they 'receive sympathy for their suffering'
(Crocker, 1999: 48; Graybill, 1999; Hayner,
2001). But they can also be understood as
society-oriented, to the degree that they aim
to promote reconciliation, or policy-oriented,
when they document abuse patterns useful in
reforming the system or organs in question.
Though usually branded restorative mech
anisms, truth commissions mark the tran
sition from earlier accountability measures
that only indirectly assigned responsibility
to later measures that explicitly personalize
blame. Retributive aspects may be subtle
(rights violators are not formally deprived of
their freedom or livelihoods), but profound
effects of public humiliation (Cohen, 2003:
1075; Riezler, 1943; Shweder, 2003), rang
ing from social ostracism to political defeat,
have led some to label this 'concealed ret
ribution' (McGregor, 2001: 38; Hayner,
2001: 24; Osiel, 2000; Zalaquett, 1995).
While alleged perpetrators may be dismissive
(Payne, 2001; Shapiro, 2003), identifica
tion of former rights violators, particularly in
public truth commissions, is one step up the
ladder towards personal accountability and
directly threatening those aligned with the
former system.
Investigation of the much-heralded South
African Truth and Reconciliation Commis
sion (TRC) highlights the risks inherent in
this process. Former South African President
F. W. de Klerk used continued white power
to press for amnesty for his constituents (de
Klerk, 1999: 288). ANC leaders, contending
with anti-amnesty constituents, accepted a
truth commission characterized by conditional
amnesties as a compromise (Eades, 1999;
Jackson, 1998; Newham, 1995; Waldmeir,
1997: 213; Wilson, 2001: 7). Even then,
many whites saw the truth commission as a
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828 journal of PEACE RESEARCH volume 467'number 61' no v ember 2009
threat rather than a bargain, a witch-hunt'
in the words of the TRC chair (TRC, 1995).
As a result, many in the potentially danger
ous security services chose to remain in the
shadows rather than risk speaking up and then
being denied amnesty (Davenport, 1998).
Security services in other states have been
more vocal, with members of El Salvador's
military opposing a UN-sponsored Truth
Commission on the grounds that 'because
of a few bad (members), an entire institu
tion is being judged' (Wilkinson & Miller,
1992; Alder, 1993). Some new leaders may
purposely limit the scope or powers of the
commission to avoid upsetting the new bal
ance (Dicklitch & Lwanga, 2003).
V Purging Human Rights Abusers
from Public Positions
While stages 1 through 4 of this transitional
justice spectrum spare former rights abusers
formal sanction, employment bans for the
first time impinge on their civil liberties.
According to some scholars, such bans can
increase societal trust in critical public insti
tutions and enhance rule-of-law concepts
(Kritz, 1996) and can also act as a (restora
tive) form of affirmative action by creating
positions for people previously denied jobs
on account of their political views (Esquith,
1999). On the other hand, such purges bring
about a range of practical and ethical con
cerns about whom to target and what sorts of
limitations to apply (Baehr, 2000; CE, 1996;
Rigby, 2001). Purges can be destabilizing,
whether because they weaken state capacity
(by expunging the only trained specialists) or
create strong incentives for collective action
on the part of banned actors (Kritz, 1996).
As provocative as this measure may seem
to some elites, there are ways to lessen the
risk of destabilizing collective action by those
being purged. Older functionaries, for exam
ple, may be able to transition into (early)
retirement, while the younger ones may
either have less experience with the former
regime (and therefore be allowed to stay in
their positions) or be able to relatively eas
ily find a new source of income (Kozlowski,
2004; Moran, 1994). By adopting a new
profession or accepting a lesser role in pub
lic life, members of the former regime may
continue to enjoy freedom and avoid crim
inal liability in the new order. At the same
time, human rights offenders are punished
for their actions and separated from the new
government.
The tension between an urge to purge and
a fear of potential destabilization may suf
fice to delay or even reverse policy. Immedi
ately after taking power from the military in
Greece, for example, Karamanlis dismissed
senior level ministry personnel and launched
a vetting of the old bureaucracy that resulted
in 108,000 disciplinary actions, mostly involv
ing termination (Kritz, 1996; Nanda, 1998:
391). Yet, the government waited for the
retirement of a brigadier loyal to the former
regime before feeling secure enough to purge
the higher military ranks, retiring more than
200 army officers {Economist, 1975a: 12).
In El Salvador, an official report calling for
purges of officers accused of rights viola
tions and corruption sent rumors of a mili
tary coup through the country (Wilkinson
& Miller, 1992). Even purges that followed
a military victory, such as that after World
War II, frequently resulted in rollbacks, per
haps as a result of these pressures. In Japan,
for example, less than 9,000 of an initially
purged 202,000 remained punished once
the Allies left; similarly, Italians reinstated
under a 1948 amnesty most of the 2,000
government employees purged there (Nanda,
1998: 391).
VI. Criminal Prosecution of'Executors*
Since the Nuremberg Trials of Nazi lead
ers following World War II, and through
subsequent international treaties such as the
Convention on the Prevention and Punish
ment of the Crime of Genocide (1948) and
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Brian Grodsky Transitional Justice 829
the Convention Against Torture (1984),
international law has promoted the prosecu
tion of human rights criminals (Ratner &
Abrams, 2001). Over the years, intergovern
mental organizations and local courts have
increasingly justified and encouraged criminal
prosecutions based on international human
rights law (CE, 1996; Fletcher & Weinstein,
2002; Roht-Arriaza, 1996). Scholars have
argued prosecutions of individuals can cre
ate a historical record, satisfy victims' desires
for justice, and further democratic values of
equality and accountability (Huntington,
1991; Jaspers, 1995; McGregor, 2001) while
reducing the risk of collective guilt (Kritz,
1996) and vigilante justice {Economist, 1976:
47; McGregor, 2001).
Criminal prosecutions raise the sever
ity of consequences for rights violations to
a new level (deprivation of freedom), but
come with a myriad of practical difficulties.
A lack of qualified lawyers or judges, espe
cially those not tainted by activities under
the previous regime they are to try, has been
blamed for multi-year pre-trial detentions
in countries such as Ethiopia and Rwanda
and overly lenient sentences in other states
(AFP, 1997; Kritz, 1996: 133; Naszkowska,
1992; von Kellenbach, 2003). There are
also ethical and legal questions concern
ing 'retrospective justice' (Nino, 1996:
166-179). Finally, there are concerns that
the severity of the repercussions could lead
to resistance by those accused or even whole
institutions whose personnel fear extended
witch hunts.
Such fears prompted the Argentinian
defense minister in 1986 to order expedited
trials of the 300 officers awaiting justice so
as to avoid 'an image of collective judgment'
which could provoke military unrest
(Graham, 1986). A series of army mutinies
eventually forced the government to end
prosecutions (Barham, 1992), and upon
taking power, President Carlos Menem
quickly pardoned the 39 senior officers
convicted.1 Thinly veiled threats from
military leaders in Ecuador (LARP, 1980)
and Chile (BBC, 1991a,b) were successful
in at least temporarily thwarting trials there,
as well. Opposition to a 2002 UN call for
criminal prosecutions in Sierra Leone (AN,
2002a) prompted one local newspaper to
warn that attempts at criminal justice may
cause great harm where weapons remain in
the hands of those complicit (AN, 2002b).
VII. Criminal Prosecution of Commanders
Limited capabilities or fears that wide-scale
trials could disrupt state operations may
prompt new elites to launch a more limited
set of trials that still demonstrate a commit
ment to justice (Crocker, 1999; Kritz, 1996;
McGregor, 2001). Pursuing leaders, or the
most culpable (Kritz, 1996: 6), may allevi
ate the danger that lower-level functionaries
feel they are scapegoats (Kamali, 2001: 107;
Osiel, 2000: 126; Rigby, 2001: 104-105),
but can be potentially more risky for sev
eral reasons. First, lower ranking officials
may regardless see senior-level prosecutions
as the first phase of a witch hunt (Roehrig,
2002: 199). Second, senior-level leaders may
command respect and organizational loyalty
useful in orchestrating a reaction at lower
levels. Finally, this ripple effect may reach
far deeper, creating perhaps unexpected
societal reactions in a world where even the
most brutal dictators seem capable of evok
ing immense emotional solidarity. Fifty years
after Stalin's funeral, which drew tens of
thousands, one attendee recalled, 'It was as
if we lost the father of the family, the person
who took care of us. We felt like orphans'
(Rosenberg, 2003).
These pressures are visible in a range of
cases. Weeks before new elites moved to
1 Interestingly, President Kirchner in 2003 felt secure
enough to sponsor a law annulling immunity for approxi
mately 2,000 former military men allegedly tied to
pre-1983 abuses (Hennigan, 2003).
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830 journal of Peace research volume 461 number 61 november 2009
arrest and extradite to the Hague deposed
Yugoslav dictator Slobodan Milosevic, opin
ion polls suggested only 11 % of Yugoslavs
supported his extradition (Holley, 2001)
and approximately 1,000 people created a
'people's guard' to defend his home (Mitic,
2001). Post-oppositionist Prime Minister
Zoran Djindjic, an advocate of criminal jus
tice, warned that high-profile extraditions
might lead to civil war (RFE/RL, 2002).
An apartheid-era South African president
warned the new government in 1995 that
prosecutions of apartheid-era leaders would
'awaken the tiger in the Afrikaner' (DPA,
1995). The durability of this emotional
bond was evidenced following the arrest by
British authorities of Augusto Pinochet in
1998, eight years after he left power, which
brought 3,000 pro-Pinochet demonstrators
to the streets of Santiago (DPA, 1998).
Associates of the old regime lingering in
the state apparatus frequently lead the defense
of their leaders. Less than a year after losing
power, Greek officers launched a failed coup
to secure an amnesty for imprisoned leaders
of the former junta, convincing the new gov
ernment to reduce those leaders' sentences
{Economist, 1975a: 12,1975b: 15, 1975c: 12).
Similarly, a series of army mutinies in Argentina
contributed to government decisions to at
first expedite trials and later issue amnesties
for those senior officials convicted of human
rights crimes (Barham, 1992; Graham, 1986).
A continent away and a decade later, Malawi's
army intercepted a brewing military coup on
the eve of the trial of former Malawian ruler
Hastings Kamuzu Banda, accused of involve
ment in several political murders (AFP,
1995a,b; Mponda, 1995).
Discussion
By identifying and theoretically rank-ordering
a range of accountability policies, this 'tran
sitional justice spectrum' qualifies vague
labels of lenient and harsh prevalent in the
theoretical transitional justice literature, and it
allows researchers to empirically test causal
theories of transitional justice across cases.
In the preceding section, I provided evidence
that each incremental step up the spectrum
involves more personalized responsibility and
more severe repercussions to the old elite.
Some of this evidence was closely linked to
old elite reactions, symptoms of discomfort
associated with a given measure. As men
tioned above, this spectrum can be used to
indicate the success of the relative power
arguments, since - according to mat logic states
with the strongest old elites should
eschew the harshest retributive measures.
And the simple nature of the spectrum is
designed to make it durable across contexts.
For example, while the passage of time or
the nature of abuses might affect the type
of justice pursued, each incremental step up
the spectrum should at any point in time be
more provocative than the previous stage. In
other words, truth commissions will always
be less provocative (or risky) than purges,
which will always be less confrontational
than prosecutions.
But this spectrum is also a useful tool for
evaluating or generating other theories related
to transitional justice. Here, the spectrum
functions in two ways. First, it essentially pos
its relative power as the null hypothesis and
gives us an ordinal tool to identify possible
inconsistencies. This might be particularly
useful in large-TV studies, where comparisons
of cross-sample data could indicate general
trends. Second, the spectrum provides a useful
(if basic) checklist of important justice policies
that have been implemented around the world.
As with any broad framework, this list is not
intended to be exhaustive, and additional
measures, such as property restitution, might
also be added to suit the context. Archival or
interview data might be used to explore the
determinants of each of these policies. Taken
in the aggregate, these data could support
existing theories or identify new variables.
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Brian Grodsky Transitional Justice 831
In my own research, I used this spectrum
to explore why political elites pursued or
eschewed various forms of justice in four
diverse post-communist states: Uzbekistan,
Serbia, Croatia, and Poland (Grodsky, forth
coming). My theoretical argument focused
on economic-based motivations, but I used
this spectrum as a tool to assess other (includ
ing relative power) arguments as well. My
evidence was based on analyses of local and
international media reports and more than
215 elite interviews conducted (in the local
languages) primarily with post-oppositionists
in various influential government posts and
non-governmental actors involved in human
rights. During the 50?90-minute meetings,
interviewees were asked for their perceptions
concerning why the new leadership (un)suc
cessfully launched or did not launch each
mechanism on the spectrum.
The results of my fieldwork were fascinat
ing. Across my cases (including in Uzbekistan,
where any transition collapsed along with the
Soviet Union), I found political elites were
particularly sensitive to how various measures
of justice would affect their ability to pro
vide public goods to expecting populations
(Grodsky, 2008b). Post-opposition elites
tended to drive the accountability process, but
the direction they took was usually limited by
the degree to which they expected the public
would perceive their activities as facilitating
or hindering other, especially economic, poli
cies. Relative power was deterministic only to
the degree that it made measures practically
impossible (e.g. post-oppositionists lacked
the required votes to pass a particular law) or
particularly costly (when old elites threatened
to thwart other public goods-related bills as
a consequence of tough accountability mea
sures). The threat of voter backlash, rather
than a coup or civil war, was ultimately the
key constraint on justice.
If Huntington applied this spectrum to
the case of Uruguay discussed above, he
might well find that relative power was the
key determinant of justice policy. But if, for
example, purges of the military (an aspect
of the dependent variable that Huntington
does not consider here) were instigated in
the absence of truth commissions, this would
highlight a weakness to his theory. Using the
spectrum as a checklist in a more thorough
qualitative study, Huntington might find
that other factors, aside from relative power,
had an important effect. For example, per
haps new elites relatively supportive of lift
ing the amnesty did not actively push for a
'yes' vote in the referendum, believing that
a campaign for this cause would be seen by
constituents as too much energy spent on
past problems rather than the problems of
today. Or perhaps voters who upheld the
military amnesty in the referendum were not
swayed by comments from the military, but
by perceptions that the justice system had
its hands full enough already, perhaps fight
ing corruption. If earlier, less risky stages on
the spectrum - such as legal rehabilitation or
condemnation - were also left unaddressed,
this might point to the perception among
political elites that the public was simply
uninterested in justice.
As indicated above, this spectrum may
be useful in large-TV studies where there are
sufficient data concerning efforts at justice
in a group of countries. If the relative power
argument is correct, there should be a cor
relation between the power of new elites (e.g.
measured by transition type or seats in gov
ernment/legislature) and the highest degree
of justice pursued. But my two years of field
work, trying out this spectrum, point to two
areas of caution, concerning questions of
reform authenticity and interaction effects.
With respect to the former, users of this spec
trum must be aware as they code data for
each country that there may be significant
differences between what I call 'genuine' and
'artificial' accountability reforms. For exam
ple, a truth commission conducted in demo
cratic, post-apartheid South Africa obviously
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832 journal of PEACE RESEARCH volume 461 number 61 november 2009
differs substantially from one imposed in
authoritarian Uzbekistan or Chad (Grodsky,
2008a). In other words, how measures are
pursued can be just as important as whether
they are pursued. Context is important and, as
always, studies are only as strong as their data.
This observation leads to a second cau
tion for using this spectrum, particularly in
large-TV studies: under certain conditions
there may be interaction among various
components of the dependent variable. In
particular, in the relatively few cases where
there are international pressures for a par
ticular form of justice, leaders pursuing
one form of justice may argue the enacted
mechanism makes alternative justice poli
cies immaterial. Serbian cooperation with
the International Criminal Tribunal for the
former Yugoslavia (ICTY), for example, may
have precluded more aggressive bureaucratic
cleansing or local criminal trials. Conversely,
there is much evidence that Yugoslav President
Vojislav Kostunica launched a truth commis
sion in order to reduce pressure for unpopu
lar handovers to the ICTY. This interaction
makes it impractical to look for a correlation
between one policy and another, or measure
results cumulatively, under such circum
stances. Still, in these unique cases it seems
that the relative power argument could be
assessed according to the highest stage of jus
tice pursued (using the spectrum as an ordi
nal measure). The fact that Serbian political
leaders made so many high-level handovers
to the ICTY in exchange for international
support and despite the strength of former
elites suggests a need to at least reconsider
relative power arguments.
Finally, it should be emphasized that as
much as this justice spectrum is designed
to deal with a significant weakness in the
current theoretical literature, it is also an
invitation to begin a broader debate on
this subject. In order to produce coherent
theories that explain why and how leaders
pursue accountability for past human rights
violations, we must agree on a measuring
stick. This article suggests one such instru
ment and opens the floor for suggestions of
other mechanisms that may substitute or
complement this one. The collective goal
should be to increase our capacity to gener
ate and test transitional justice theories in
ways that are more rigorous and therefore
more satisfying.
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BRIAN GRODSKY, b. 1974, PhD in Political
Science (University of Michigan, 2006);
Assistant Professor, University of Maryland,
Baltimore County (2006- ); current main
interests: democratization, global civil society,
human rights. Forthcoming book: The Costs
of Justice: Understanding How New Leaders
Choose to Respond to Previous Rights Abuses
(forthcoming, University of Notre Dame
Press, 2010).
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