Impact, Legitimacy, and Limitations of Truth Commissions 3030111717, 9783030111717

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HUMAN RIGHTS INTERVENTIONS

Impact, Legitimacy, and Limitations of Truth Commissions

a nge l a d. n ic hol s

Human Rights Interventions Series Editors Chiseche Mibenge Stanford University Stanford, CA, USA Irene Hadiprayitno Leiden University Leiden, Zuid-Holland, The Netherlands

The traditional human rights frame creates a paradigm by which the duty bearer’s (state) and rights holder’s (civil society organizations) interests collide over the limits of enjoyment and enforcement. The series departs from the paradigm by centering peripheral yet powerful actors that agitate for intervention and influence in the (re)shaping of rights discourse in the midst of grave insecurities. The series privileges a call and response between theoretical inquiry and empirical investigation as contributors critically assess human rights interventions mediated by spatial, temporal, geopolitical and other dimensions. An interdisciplinary dialogue is key as the editors encourage multiple approaches such as law and society, political economy, historiography, legal ethnography, feminist security studies, and multi-media. More information about this series at http://www.palgrave.com/gp/series/15595

Angela D. Nichols

Impact, Legitimacy, and Limitations of Truth Commissions

Angela D. Nichols Department of Political Science Florida Atlantic University Boca Raton, FL, USA

Human Rights Interventions ISBN 978-3-030-11171-7    ISBN 978-3-030-11172-4 (eBook) https://doi.org/10.1007/978-3-030-11172-4 Library of Congress Control Number: 2019930041 © The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2019 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover image: © Flovie / shutterstock.com This Palgrave Pivot imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

For Devon

Acknowledgments

I am forever indebted to a village of folks who helped me complete this book. First, this project would not be possible without my dissertation committee members at the University of North Texas. I thank Jacqueline H.R. DeMeritt, T. David Mason, Andrew Enterline, John Ishiyama, and Michael Greig for their time, knowledge, and mentorship. James Meernik, Marijke Breuning, Matthew Eshbaugh-Soha, Paul Hensel, and Cullen Hendrix also provided support and professional advice which has proven to be truly invaluable. I am deeply grateful to each. I thank Eric Weibelhaus-Brahm, Christopher Fariss, and Hyeran Jo, as well as a handful of anonymous reviewers, for comments on various drafts of this work. Each helped improve the project with his or her wisdom. Additionally, I thank Doug Lemke for being the first to suggest I consider attending graduate school. His teaching and encouragement inspired me to embark on this journey. I am fortunate to have shared my graduate school experience with thoughtful and supportive colleagues. Mike Widmeier, Eric Keels, Nick Higgins, Ben Gross, Chris Linebarger, Jeremy Backstrom, Emily Stull, and Christine Balarezo challenged and encouraged me along the way. I thank dear friends Sara Shiveley, Hannah Glidden, Eliza G. Kelly, Angela Sortor, Kate Widmeier, and Heike Woerner for keeping me grounded. My colleagues at Florida Atlantic University have supported me in the final stages of this project. While all have been helpful, I am particularly thankful for the support of Kevin Wagner, Mehmet Gurses, Jeffrey Morton, Annette LaRocco, and Rebecca LaMoine. vii

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Acknowledgments

Chiseche Mibenge, Irene Hadiprayitno, Anca Pusca, Katelyn Zingg, and Hemalatha Arumugam made the publishing process as painless as possible. I thank each of them for their guidance throughout this process. My family, of course, deserves the most gratitude. My mom Penny Wheelis and step-dad Gaylynn Wheelis taught me to dream big and never quit. My dad Joe Nichols helps me with the day-to-day necessities of life, allowing me to focus more on my work. My sister Megan Adams is my sounding board and my best friend. I thank them all for being my most fervent supporters. Finally, I thank my son Devon Cade O’Neal. I began my journey in higher education when he was just three months old. As such, he has weathered every storm and celebrated every milestone with me. I am grateful for his good nature, patience, and unyielding support. The comments and advice from many have made this project better. The errors that remain are my own.

Praise for Impact, Legitimacy, and Limitations of Truth Commissions “The study of transitional justice has moved beyond a normative understanding of impact driven by dichotomous understandings of implementation. Nichols’ book and dataset are important contributions to this new work. Advancing our knowledge of the legitimacy of truth commissions, her findings have important implications for how we study, and advocate for, transitional justice moving forward.” —Cyanne E. Loyle, Indiana University, USA and Peace Research Institute Oslo (PRIO), Norway

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Contents

1 Introduction  1 1.1 Scholarly Motivation  4 1.2 Chapter Outlines  9 References 12 2 Mechanisms of Transitional Justice 15 2.1 Truth Commissions 20 References 23 3 Truth Commission Legitimacy 25 3.1 Authority 31 3.2 Break with the Past 33 3.3 Transparency 36 References 39 4 Measuring Truth Commission Characteristics 41 4.1 Dimensions of Authority 44 4.2 New Regime 46 4.3 Transparency 46 4.4 Other Characteristics 47 References 51

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5 Truth Commission Legitimacy and Human Rights 53 5.1 Authority 55 5.2 New Regime 56 5.3 Transparency 57 5.4 Research Design 59 5.5 Results 62 5.6 Conclusion 67 References 69 6 Truth Commission Legitimacy and Violence in Africa 73 6.1 Authority 74 6.2 New Regime 75 6.3 Transparency 76 6.4 Research Design 77 6.5 Results 80 6.6 Conclusion 84 References 85 7 Conclusion 87 7.1 Colombia’s Truth Commission 92 References100 Index103

List of Figures

Fig. 4.1 Fig. 4.2 Fig. 4.3 Fig. 4.4 Fig. 6.1 Fig. 6.2 Fig. 6.3

Mandate strength 45 Truth commission duration 49 Years until truth commission 50 Number of commissioners 50 Violent SCAD events 78 Impact of dimensions of authority on expected number of violent events82 Impact of public hearings on expected number of violent events 83

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List of Tables

Table 4.1 Truth commissions Table 4.2 New regime Table 4.3 Public hearings Table 4.4 Report released Table 5.1 Summary statistics: independent variables Table 5.2 Cross-correlation of independent variables Table 5.3 OLS: dynamic latent physical integrity variable Table 5.4 Ordered probit: CIRI Table 5.5 Ordered probit: state department (PTS) Table 5.6 Ordered probit: amnesty (PTS) Table 6.1 Negative binomial regression for violent SCAD events Table 6.2 Selection stage probit: TC onset

43 47 48 48 61 61 63 63 64 65 81 81

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CHAPTER 1

Introduction

Abstract  Truth commissions are one of the many tools societies may establish following a period of authoritarianism or civil war. As they are increasingly adopted, this book compares the various truth commissions that have been created in the recent past and their ability to impact human rights and violence. This chapter introduces the project and discusses why it is a significant contribution to the literature regarding post-conflict processes, transitional justice, and truth commissions. Keywords  Transitional justice • Truth commissions • Post-­ authoritarianism • Post-conflict States emerging from a period of conflict or repression often adopt one or some combination of transitional justice (TJ) mechanisms in an attempt to maintain peace while addressing abuses perpetrated in the past. Protagonists from the previous period must find a way to co-exist in the new order. TJ is an increasingly relied upon means to facilitate that process (Sikkink 2011; Ben-Josef Hirsch 2014). The adoption, study, and advocacy for TJ has, however, been based in idealistic aspirations more than observable outcomes, necessitating a fact-based, rather than faith-based, approach to understanding the causal process behind truth commissions (TC) and other forms of TJ (Thoms et al. 2010). © The Author(s) 2019 A. D. Nichols, Impact, Legitimacy, and Limitations of Truth Commissions, Human Rights Interventions, https://doi.org/10.1007/978-3-030-11172-4_1

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The initial aspirations of TJ mechanisms were grandiose; in reality, mechanisms of TJ are political institutions. As such, they are subject to imperfection, misuse, and failure. Therefore, it is important to identify the particular characteristics that enable these institutions to create a political space in which compromises and discussions about the past can be carried out without further destabilizing the often-fragile environment in which they operate. Mechanisms of TJ are tools used by leaders, governments, societies, and the international community to accomplish a variety of goals, and thus, they are not all alike. In a perfect world, these institutions would be created based on an assessment of what elements would best accomplish a particular institution’s goals. In reality, however, their structure is usually the outcome of a political bargain, and the actors who negotiate these terms are to varying degrees seeking their own protection. Despite these limitations, some TJ institutions are able to create space and therefore an opportunity in which domestic processes begin to change. This project examines the characteristics that may allow TCs—one mechanism of TJ—to create this space. I focus on TCs alone namely because existing work provides inconsistent findings regarding their impact—quantitative work has found that TCs do not have much effect on the societies in which they exist, while qualitative work presents TCs in a more idealistic light. I posit that this is the result of a failure to consider the wide variety of TCs that exist and the various characteristics that they possess. In this project, I compare TCs against one another hoping to reveal what separates those TCs that are able to have an impact on society from those that are not. One potentially limiting consequence of this is that it leaves out an exploration of the combinations of TJ institutions that exist, as they rarely occur in a vacuum. Instead, countries often adopt more than one mechanism of TJ.  Future iterations of this work will broaden the theorized relationships to include trials, amnesties, and lustration processes. TCs are not simply truth-seeking bodies, but also political tools (Grodsky 2008; Loyle and Davenport 2016; Vinjamuri and Snyder 2015). Although truth-seeking is a crucial aspect of the TC process, it is not the only or a strictly pure goal; the extent to which truth-seeking is the focus of TCs varies. In fact, the truth-seeking capabilities of TCs are constrained by the investigative power or reach determined by a mandate. Additionally, TCs occur in the most tenuous post-conflict environments. Often, they are the result of a political compromise made by warring parties who seek to avoid prosecution, but preserve a negative peace (no war)—another constraint on

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truth-seeking. Scarce resources in the post-conflict environment are yet another important constraint that impacts the truth-seeking capabilities of TCs.1 Further still, TCs may assist with criminal prosecutions by serving an intermediate role until states can set up trials. They help expedite trials by collecting evidence and testimony that can later be used in prosecutions (Scharf 1996). Frequently, TCs go beyond the mere recovery of facts in pursuit of political objectives by offering “a new official version of a nation’s history during a specific period as the basis for a shared national identity and political culture” (Van der Merwe et  al. 2009, 109). These competing objectives and constraining factors limit the truth-­seeking abilities of TCs. The characteristics of the TCs must then have some bearing on whether or not the TC is useful in effecting any change in the societies where they exist. This book centers around the question: What impact do TCs have on human rights and violence in the aftermath of conflict or mass abuse? The World Bank identifies TJ institutions as core program tools for societies attempting to overcome cycles of violence. The performance of TCs, however, varies significantly during the last 40 years. The South African Truth and Reconciliation Commission (SATRC, 1995–2002), for example, held public hearings, awarded individual amnesty in exchange for truth telling, was championed by the unprecedented leadership of Nelson Mandela and Desmond Tutu, and is touted by policy makers and scholars alike as one of the most effective TJ institutions to date (Gibson 2006, 2009). Conversely, the first Ugandan TC (1974) is widely accepted as a mere posturing by the commission’s creator, then Ugandan President Amin, and a failure in its declared mission to end brutality committed by Amin’s government (Hayner 1994). The remaining dozens of TCs fall somewhere between these two extremes, calling attention to the vast differences among these institutions and, further, the inconsistent findings within the TJ scholarship. I argue TCs are most likely to impact society when they possess certain institutional characteristics—characteristics that send important political signals to the state and broader society alike. If these signals suggest (1) some degree of authority (e.g. independence of the government); (2) a break with the past or regime change; and (3) transparency in both its investigations and findings, then the TC enjoys a social and political l­egitimacy that enables it to impact society. In particular, I examine whether or not TCs with these characteristics are more likely to respect human rights and exhibit lower levels of violence.

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1.1   Scholarly Motivation Theoretical issues coupled with methodological challenges have kept the TJ scholarship moving at a slow, albeit steady, pace. Despite recent advancements, unanswered research questions abound. I identify three key issues with the current literature. First, at its inception, TJ was saturated with legal and theoretical discussions which placed an emphasis on conceptual and definitional issues (Van der Merwe et  al. 2009). While these are important foundational inquiries, the scholarship has moved beyond these conversations. In other words, initial work was normative, and—while important and valuable—that approach has limited this work’s ability to assess TJ institutions as the political tools that they are. Understanding how these mechanisms function politically as institutions is important for observing the impacts they have on the societies where they exist, which is a key contribution this project makes to the literature. Second, scholars have been ad hoc in their selection of cases, resulting in a segmented field. There is a great deal of inconsistency in the cases selected by various authors (Stewart and Wiebelhaus-Brahm 2017). Some focus on one mechanism: Hayner (2010), Gibson (2004), and Wiebelhaus-­Brahm (2010) examine TCs; Meernik (2003, 2005), Meernik et al. (2010), and Kim and Sikkink (2007) consider only criminal prosecutions or trials. Others like Olsen et al. (2010a) take a holistic approach and consider all mechanisms. Still others use some other method of determining cases. Vinjamuri and Snyder (2015) assert that the entire TJ literature has done little to “differentiate hard from easy cases, an underappreciated distinction that is essential to account for variation in the type of transitional justice strategies adopted or in the success of these strategies.” Understanding the differences among TCs is another contribution of the research presented in this book. Finally, extant research fails to reach consensus regarding the effects of TJ processes (Quinn and Freeman 2003; Freeman 2006; Olsen et al. 2010a; Van der Merwe et  al. 2009). Although a growing and vibrant body of research explores the efficacy of TJ (Sikkink 2011; Hayner 2010; Kim and Sikkink 2010; Sikkink and Walling 2007; Roht-Arriaza and Mariezcurrena 2006; Teitel 2000; Taylor and Dukalskis 2012; Olsen et  al. 2010a; Wiebelhaus-Brahm 2010; Meernik et al. 2010; Meernik 2003, 2005), there is little consensus on the impact(s) these bodies yield (Thoms et al. 2010). “In essence, a great deal is known about the literal mechanics of transitional justice processes, but far less is understood about the resulting implications”

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(Van der Merwe et al. 2009, 51). For example, some like Akhavan (2001) conclude that TJ institutions have a positive effect on transitioning societies (Wiebelhaus-Brahm 2010; Olsen et al. 2010a; Kim and Sikkink 2007) while others are more apprehensive (Mendeloff 2004; Snyder and Vinjamuri 2004; Meernik et al. 2010; Loyle and Davenport 2016). I elaborate these inconsistencies in the following paragraphs, but first note that I develop and test a comprehensive theory of TJ success that begins to fill these methodological and theoretical holes by stepping away from the add TJ and stir approach by arguing that political legitimacy must be achieved before any impact can be observed. Some are hopeful, but apprehensive, about the real impact that TJ institutions such as trials and TCs yield (Mendeloff 2004). This is exemplified by Wiebelhaus-Brahm’s (2010) puzzling and contradictory findings. His qualitative evidence, like others’ (Hayner 1994, 2010), supports the argument that TCs improve respect for human rights. His quantitative work, on the other hand, suggests that in the aggregate this relationship does not hold. Wiebelhaus-Brahm (2010, 141) offers two complementary explanations for these findings. First, improvements in human rights did occur in the case studies, but may not do so in a manner that is reflected in the generalizable quantitative measures available (The Cingranelli-­ Richards (CIRI) Human Rights Data Project and Political Terror Scale (PTS)). Second, the case studies chosen are the most prominent TC cases (El Salvador, Chile, South Africa, and Uganda) and as a result may be the “best” of these institutions to date and therefore not reflective of a general trend, but rather outliers that outperform their counterparts. Perhaps, instead the successful TCs had more of the traits that lead to legitimacy. Each of these TCs investigated broad abuses and released a final report. These are important characteristics that I argue are associated with legitimacy and thus an ability to impact society. Most quantitative analysis does not differentiate between the various characteristics of TCs, but instead measures their presence or absence as binary. In other words, a TC exists or it does not; if it meets the author’s definition of legitimate, it is a TC, otherwise it is not. This book compares some important distinctions among TCs that prior work has overlooked and assists in sorting out the contradictory findings of existing work by determining which TCs have positive impacts on society. I suggest, and Wiebelhaus-Brahm’s (2010) discussion supports, that current scholarship overlooks key differences among TCs that separate those that are capable of exerting an impact from those that are not.

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Some argue that TJ may have no effect at all at reducing the recurrence of civil war or improvements in human rights practices (Meernik et  al. 2010). And a few argue that TJ may even have a negative impact on transitioning societies as trials may, in the immediate aftermath of civil war, polarize citizens across existing cleavages (e.g. ethnic, religious, socio-­ economic, and political divides) (Snyder and Vinjamuri 2004). Critics of TJ research argue that it relies principally on normative theories of how TJ works (Vinjamuri and Snyder 2004), relies heavily on anecdotal evidence (Van der Merwe et al. 2009; Mendeloff 2004), and generally ignores variation in the composition of TJ (Thoms et  al. 2010; Van der Merwe et al. 2009). Loyle and Davenport (2016) call attention to the lack of scholarship that discusses the normatively “bad” ends that TJ may be used toward and present a theoretical framework explaining how mechanisms of TJ can be used to advance “Transitional Injustice” or political cover. Further, Loyle (2018, 4) argues “that it is the ability of transitional justice to address specific concerns of political order which has contributed to the increased use of these processes.” In other words, TJ can be used strategically to a variety of ends, making it increasingly attractive to states. This project addresses these issues by presenting a theoretical argument that unpacks the institutional characteristics that help TCs achieve legitimacy and prevent situations like Grodsky discusses. To this end, I also address the issue of ignoring the variation in the composition of TJ. Specifically, I argue TCs that demonstrate authority, a break with the past, and/or transparency are more likely to contribution to an increase in respect for human rights and a decrease in violence following civil war or a period of abuse. Additionally, incipient data and elementary hypothesis testing reinforces an incomplete understanding of TJ effectiveness, thereby hampering the transference of scholarly knowledge to policy implementation (USIP 2011). Existing work, despite its progress in other areas of research, has failed to account for the differences among the various TCs adopted. More recent findings in the quantitative literature suggest that TCs used alone are potentially harmful to democracy and improvements in human rights, but that TCs used in conjunction with amnesties and/or trials are associated with improvements in human rights and democracy (Wiebelhaus-­ Brahm 2010; Olsen et al. 2010a, b). The idea behind this argument is that TCs serve one function of achieving justice, while amnesties and trials serve another. The authors call this a justice balance that must be achieved in order for improvements in human rights and democracy to be observed

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as commissions are “incapable of promoting stability and accountability on their own,” but instead compliment trials and amnesties (Olsen et al. 2010b, 457). I suggest, however, that a key point of consideration has been missed. TCs vary a great deal. Some share characteristics similar to those of trials and amnesties (e.g. naming names, holding amnesty boards and/or public, requiring apologies and/or compensation for wrongdoings, etc.), but others do not. I argue that we cannot attribute these differences in outcomes to other processes (i.e. trials, amnesties) without first accounting for the differences in TC composition. The most significant contribution of this project is that I address the variations in the composition of TCs. Before continuing, I note two points of clarification that place some degree of limitation on this research, but not without consideration. First, I adopt the same differentiation between success and impact put forth by Wiebelhaus-Brahm (2010, 23): success refers to whether or not a commission fulfilled its mandate, which is difficult to generalize. TCs establish their own specific goals and therefore “success” is observed when a TC completes the tasks outlined in their specific mandates. Reputed broader impact, on the other hand, is what advocates and supporters of TJ institutions seek to observe (e.g. idealistic and sweeping truth and reconciliation). Impact, on the other hand, refers to the social and political consequences of a commission’s investigation and is therefore observable and comparable crossnationally. Examples include improvements in respect for human rights, decreases in violence, moves toward democratization, and prospects for a more sustainable peace. This project examines the first two, but future iterations of this work should also examine the last two. I do not focus on success, because a dictator could write a limited mandate and proclaim success without any real truth or reconciliation. I am less interested in proclamations and more interested in observable outcomes—improvements in respect for human rights and decreases in violence. Second, I do not consider origin or onset of TCs theoretically. I do, however, consider it (to the best of my ability) empirically in order to get unbiased and consistent estimates of the effects that TCs have on human rights and violence. I plan to explore these important areas of research in future iterations of this research program. For now, however, I also suspect that examining the population of cases that I am—TCs—allows for a comparison between similar cases in which onset may not be as critical. When periods of conflict or severe repression come to an end much of society is destroyed or at least severely weakened/traumatized. Afterward,

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however, people must make difficult choices. Where do they live? Where do they work? Can they return to their homes? Are folks able to locate the friends and family from whom they were separated? And eventually, which institutions can they look to for guidance and security in the future? Aside from the domestic actors that are already competing for power, non-­ governmental  organizations  (NGOs),  intergovernmental organizations (IGOs), and others flock to post-conflict areas and compete to exert their influence; citizens must choose which of these they endorse. While this is true for all aspects of society, I am concerned with the institutions expected to help transition society toward peace and stability. At the most fundamental level, these institutions cannot function, have the opportunity to be impactful, or exert their influence unless they first achieve legitimacy. While they are neither necessary nor sufficient for peace or democracy (Wiebelhaus-Brahm 2010), TCs may provide a political and social space during the interim period where past grievances and uncertainty about the future can be investigated without violence. If the TC can achieve legitimacy in its own right, it can have an impact independent of the government which increases respect for human rights and decreases violence during the initial transitional period. Whether or not these remain in the long term is likely a function of state institutions and policies. In the short term, TCs can create a public record and foster the norm of a commitment to human rights that can constrain the new government from returning to old repressive practices. During this crucial interim period, other more permanent government institutions can take hold (i.e. strong judiciary, democratic and functioning legislature, strong civil society groups, etc.). In the best of circumstances, these other institutions are influenced by the norms and benchmarks modeled by the TC, thereby increasing the overall prospects for sustainable peace and long-term stability. Additionally, TCs may institutionalize respect for human rights in ways that constrain governments’ abilities to resort to abuse. In other words, I recognize that the impact of TCs may be limited— alone TJ cannot prevent war or democratize a society. Instead these mechanisms can, if constructed appropriately, provide an unbiased mechanism to which the state and citizens alike can temporarily entrust the responsibility of addressing past abuses and future goals, thus improving respect for human rights and decreasing violence in the short term. In the best situations—where TCs exercise the authority, signal a break with the past, and are transparent—the citizenry can focus on re-building their own lives rather than focusing on past or future abuses or engaging in violence

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themselves. The new or reformed government can evolve and take hold, all while both the state and society entrust the TC to investigate the past that drove them apart. This simultaneously meets a practical need for a political and social space to address past abuses and solidifies the norms of respect for human rights and nonviolence. While advocates make strong claims about the healing power of TC, scholars are less convinced. Some argue that TCs have a positive impact, some suggest they have no impact, and still others argue that they have a negative impact on society. I suggest that one manner by which we can begin to better understand the impact of TCs is to unpack the specific characteristics of these bodies. I further suggest that perhaps we can uncover the particular institutional characteristics that encourage or foster peace and stability in transitioning societies. A key contribution of this project is that it dispels some existing disagreement and provides evidence that there are identifiable “best practices” for states and organizations like the International Center for Transitional Justice (ICTJ). If we can identify which characteristics of TCs are associated with which positive outcomes, then we (1) can explain variation in their impact and (2) identify for policy makers the elements that are most critical to achieving TC legitimacy. TCs are important catalysts for changing norms post-conflict/post-­ authoritarianism, as they are important institutions that represent a break from the past and a more peaceful and progressive future. As a result, citizens look to TCs for signs of what the future institutions in the country will be like. TCs thus have an immediate or direct impact on the institution itself, coupled by an indirect impact on broader society. This indirect impact is achieved by sending signals and cues that influence the norms established in the transitional period. These direct and indirect impacts combine and enable TCs to contribute to human rights improvements and decreases in violence.

1.2   Chapter Outlines The expectation of justice following conflict is a norm that has recently evolved. In the next chapter I discuss this and other important issues related to the development of TJ mechanisms, paying particular attention to the wide array of TC processes that exist. Throughout this chapter, I discuss the strengths, weaknesses, and significant contributions of specific TCs, as well as the scholarship’s treatment of these cases. In Chap. 3, I unpack existing TJ mechanisms, as well as work on TCs and legitimacy to explain why

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legitimacy is essential to TC success. I conclude the chapter by introducing three important components of legitimacy. Authority refers to the range of power given to TCs by their mandate. Authority establishes some degree of independence from the state which is necessary for TCs to carry out their tasks, as well as for them to establish credibility with both elites and broader society. When a new regime investigates the old regime, the degree to which TCs are perceived to investigate with an even hand is arguably increased. When TCs signal a break with the past, they are able to counter this fear among the elites and the citizenry making their investigations and findings more likely to be accepted by all. Transparency reflects the nature and degree to which TCs engage with and communicate their proceedings and findings to society. This is important for a couple of reasons, but namely that society cannot react to processes if little is known about them. Thus, holding public hearings and releasing reports increase TC visibility and remove suspicion regarding their functions. TCs with these characteristics are more likely to be trusted by all members of society which awards them the legitimacy necessary to accomplish their goals. Therefore, the greater the degree to which these three components are present in a TC, the greater the capacity that TC has to improve respect for human rights and decrease violence. I introduce a new TC characteristic dataset in Chap. 4. I describe the data collection, sources, and operationalization of the variables, as well as provide descriptive statistics of key TC characteristics for 45 TC processes from 1974 to 2012. Chapter 5 or the first empirical chapter is a global test of my theory. Most existing large-n work assesses the impact of TCs using one of three dependent variables: human rights scores, democracy or democratization, and a renewal of civil war. As I theorize that particular TC characteristics lead to peace and stability in society, I expect that TCs with these c­ haracteristics contribute to an overall decrease in human rights violations for a particular transitional country-year. This chapter lays out the research design and tests my theory using my new dataset for the independent variables. I rely on a new human rights indicator (Fariss 2014) for my dependent variable. This new measure of human rights performance provides unbiased estimates of repression using several existing human rights datasets. Fariss’ continuous latent mean variable ranges from −3.18 to 4.82, with 0 being the average for all the country-year units from 1949 to 2010. The units above or below 0 are standard deviations above or below the average; higher values represent greater respect. The argument behind the creation

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of this new dataset is simple: human rights practices have improved over time, but existing work fails to demonstrate this relationship as a result of systematic changes in the way data is collected and interpreted. To address this methodological limitation, the latent mean variable controls for what Farris refers to as the “changing standard of accountability.” I find that TCs mandated to investigate broad human rights abuses respect human rights at a rate about 30% higher than countries with TCs designated to investigate specific abuses only. Additionally, TCs created by a new regime, which I argue are seen as more fair following conflict and/ or repression by signaling a shift from the past, are associated with a greater respect for human rights compared to TCs created by the same regime that ruled during the trauma/conflict or those created by institutions outside the state apparatus. These and other findings are more thoroughly discussed at the end of Chap. 5. Chapter 6 or the second empirical chapter unpacks the dependent variable a bit further than existing work has thus far by examining more than a negative peace. In an attempt to gain a more nuanced understanding of TC impact on violence within a society, I devote this chapter to testing the argued relationships using the Social Conflict in Africa Database (SCAD)— information on protests, riots, strikes, and other similar social disturbances in Africa between 1990 and 2011. Although the use of this data limits my sample to only countries in Africa, it is not without warrant. Many if not most of the TCs created in the last 20 years have been established in Africa. This is no doubt partly a result of the number of conflicts and transitions that have taken place in the region, but also arguably a result of the upsurge in the establishment of TCs following the formation and acclaimed success of the SATRC in the early 1990s. This chapter evaluates my theory with analysis aimed at gaining a better understanding of the types of violence TCs with particular characteristics are likely to reduce in transitioning societies. I find that on average, as more dimensions of authority are awarded to a TC by its mandate, the total number of violent SCAD events decreases a great deal. Additionally, public hearings perform according to my expectations. Based on my statistical analysis, public hearings (transparency) decrease violent events. This chapter further discusses these and other results in greater depth. The conclusion—Chap. 7—reiterates that this study makes a significant contribution to the TJ research program by theorizing and demonstrating that certain characteristics of TCs are necessary in order for those TCs to be impactful. To this end, I find support for the argument that TCs with

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more dimensions of authority are associated with both an increase in government respect for human rights and a decrease in political violence. Next, I find that TCs established by a new regime, argued to be fairer than existing regimes or outside parties, lead to a reduction in state repression. Finally, I find that transparent TCs have mixed results. The presence of public hearings appears to contribute to both a rise in state repression and a decrease in political violence. This book project takes an important first step in rigorously identifying the key characteristics of TC legitimacy and suggests that countries that adopt TCs with these characteristics experience more stable and peaceful outcomes. This project is just the beginning of a research program that examines how TJ mechanisms impact the societies in which they exist. The relationships I unpack may assist states and other actors in determining what characteristics lead to more efficient and effective TCs. In the conclusion, I summarize my findings, discuss the policy implications of this work, and make suggestions for future research. I end the book with an analysis of Colombia’s newly created TC, The Truth, Coexistence, and Non-Recurrence Commission.

Note 1. I do not examine resources here as data is sparse and difficult to procure, but in future research, I intend to incorporate this important factor.

References Akhavan, Payam. 2001. Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities? American Journal of International Law 95 (1): 7–31. Ben-Josef Hirsch, M. 2014. Ideational Change and the Emergence of the International Norm of Truth and Reconciliation Commissions. European Journal of International Relations 20 (3): 810–833. Fariss, Christopher J. 2014. Respect for Human Rights Has Improved Over Time: Modeling the Changing Standard of Accountability. American Political Science Review 108 (2): 297–318. Freeman, Mark. 2006. Truth Commissions and Procedural Fairness. Cambridge: Cambridge University Press. Gibson, James L. 2004. Does Truth Lead to Reconciliation? Testing the Causal Assumptions of the South African Truth and Reconciliation Process. American Journal of Political Science 48 (2): 201–217.

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———. 2006. The Contributions of Truth to Reconciliation Lessons from South Africa. Journal of Conflict Resolution 50 (3): 409–432. ———. 2009. Group-Conflict Resolution: Sources of Resistance to Reconciliation: On Legitimacy Theory and the Effectiveness of Truth Commissions. Law & Contemporary Problems 72: 123–271. Grodsky, Brian. 2008. Justice Without Transition: Truth Commissions in the Context of Repressive Rule. Human Rights Review 9 (3): 281–297. Hayner, P.B. 1994. Fifteen Truth Commissions-1974 to 1994: A Comparative Study. Human Rights Quarterly 16: 597. ———. 2010. Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions. Didcot: Taylor & Francis. Kim, Hunjoon, and Kathryn Sikkink. 2007. Do Human Rights Trials Make a Difference. Annual Meeting of the American Political Science Association. ———. 2010. Explaining the Deterrence Effect of Human Rights Prosecutions for Transitional Countries1. International Studies Quarterly 54 (4): 939–963. Loyle, C.E. 2018. Transitional Justice and Political Order in Rwanda. Ethnic and Racial Studies 41 (4): 663–680. Loyle, C.E., and C. Davenport. 2016. Transitional Injustice: Subverting Justice in Transition and Postconflict Societies. Journal of Human Rights 15 (1): 126–149. Meernik, J.  2003. Victor’s Justice or the Law? Judging and Punishing at the International Criminal Tribunal for the Former Yugoslavia. Journal of Conflict Resolution 47 (2): 140–162. ———. 2005. Justice and Peace? How the International Criminal Tribunal Affects Societal Peace in Bosnia. Journal of Peace Research 42 (3): 271–289. Meernik, James D., Angela D. Nichols, and Kimi L. King. 2010. The Impact of International Tribunals and Domestic Trials on Peace and Human Rights After Civil War. International Studies Perspectives 11 (4): 309–334. Mendeloff, D. 2004. Truth-Seeking, Truth-Telling, and Postconflict Peacebuilding: Curb the Enthusiasm? 1. International Studies Review 6 (3): 355–380. Olsen, T.D., L.A. Payne, and A.G. Reiter. 2010a. Transitional Justice in Balance: Comparing Processes, Weighing Efficacy. Washington, DC: US Institute of Peace. Olsen, Tricia D., Leigh A. Payne, Andrew G. Reiter, and Eric Wiebelhaus-Brahm. 2010b. When Truth Commissions Improve Human Rights. International Journal of Transitional Justice 4 (3): 457–476. Quinn, J.R., and M. Freeman. 2003. Lessons Learned: Practical Lessons Gleaned from Inside the Truth Commissions of Guatemala and South Africa. Human Rights Quarterly 25 (4): 1117–1149. Roht-Arriaza, N., and J. Mariezcurrena. 2006. Transitional Justice in the Twenty-­ First Century: Beyond Truth Versus Justice. Cambridge: Cambridge University Press.

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Scharf, Michael P. 1996. Case for a Permanent International Truth Commission. Duke Journal of Comparative & International Law 7: 375–410. Sikkink, Kathryn. 2011. The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics. New York: W. W. Norton and Company. Sikkink, Kathryn, and Carrie Booth Walling. 2007. The Impact of Human Rights Trials in Latin America. Journal of Peace Research 44 (4): 427–445. Snyder, Jack, and Leslie Vinjamuri. 2004. Trials and Errors: Principle and Pragmatism in Strategies of International Justice. International Security 28 (3): 5–44. Stewart, B., and E.  Wiebelhaus-Brahm. 2017. The Quantitative Turn in Transitional Justice Research: What Have We Learned About Impact? Transitional Justice Review 1 (5): 97–133. Taylor, L.K., and A. Dukalskis. 2012. Old Truths and New Politics Does Truth Commission Publicness Impact Democratization? Journal of Peace Research 49 (5): 671–684. Teitel, R.G. 2000. Transitional Justice. New York: Oxford University Press. Thoms, O.N.T., J.  Ron, and R.  Paris. 2010. State-Level Effects of Transitional Justice: What Do We Know? International Journal of Transitional Justice 4 (3): 329–354. USIP. 2011. Truth Commission Digital Collection. http://www.usip.org/publications/truth-commission-digital-collection. Van der Merwe, H., V. Baxter, and A.R. Chapman. 2009. Assessing the Impact of Transitional Justice: Challenges for Empirical Research. Washington, DC: United States Institute for Peace (USIP). Vinjamuri, L., and J.  Snyder. 2004. Advocacy and Scholarship in the Study of International War Crime Tribunals and Transitional Justice. Annual Review of Political Science 7: 345–362. ———. 2015. Law and Politics in Transitional Justice. Annual Review of Political Science 18: 303–327. Wiebelhaus-Brahm, E. 2010. Truth Commissions and Transitional Societies: The Impact on Human Rights and Democracy. Didcot: Taylor and Francis.

CHAPTER 2

Mechanisms of Transitional Justice

Abstract  This chapter reviews extant transitional justice literature, explains the various transitional justice mechanisms adopted since the Nuremburg and Tokyo Trials were carried out following WWII, and discusses how these institutions have evolved in the recent past. The tension between idealistic expectations and political realities in transitioning states is highlighted. Important mechanisms of transitional justice are discussed throughout this chapter. Keywords  Transitional justice • Trials • Truth commissions • Nuremburg Trials • Tokyo Trials While violence and a disregard for human rights are not new phenomena, the level of awareness about these issues has grown, and with that, a norm against systematic violations of human rights has evolved. When periods of conflict or severe repression come to an end, countries must find ways in which they can repair themselves and move forward. In the past, the victors themselves would choose to either forgive and forget or repress the former enemy. In the last 20 years, however, international pressures have resulted in the expectation that countries adopt some form of transitional justice (TJ), defined as “the array of processes designed to address past human rights violations following periods of political turmoil, state repression, or armed conflict” (Olsen et al. 2010a, 11). Put another way, “Transitional justice is © The Author(s) 2019 A. D. Nichols, Impact, Legitimacy, and Limitations of Truth Commissions, Human Rights Interventions, https://doi.org/10.1007/978-3-030-11172-4_2

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made up of the processes of trials, purges, and reparations that take place after the transition from one political regime to another” (Elster 2004, 1).1 This has resulted, for example, in the establishment of five international tribunals, an increasing number of truth commissions  (TCs), a growing number of domestic criminal prosecutions, lustration processes (formal sanctions against members of the former regime), and amnesties in a wide variety of transitional societies beginning with the diffusion of the TC in Latin America in the 1980s.2 Sikkink (2011) argues that since this time, norms and ideas associated with justice have diffused around the globe; she refers to this as the justice cascade. Further, Ben-Josef Hirsch (2014) asserts that the norm of truth and reconciliation has become institutionalized through dynamic ideational change. Evidence of this is observed by the increasing number of policy makers and NGOs that prescribe mechanisms of TJ as a treatment for post-conflict and post-authoritarian societies. While the pattern of adoption is clear, the impact these bodies exert on society is not. Most advocates, policy makers, and scholars suggest that mechanisms of TJ generally increase respect for human rights, improve prospects for democratization, and contribute to overall peace and stability, but the empirical evidence is less conclusive (Olsen et  al. 2010a, c; Dancy et  al. 2010; Van der Merwe et al. 2009; Meernik et al. 2010; Wiebelhaus-Brahm 2010; Sikkink 2011). I return to this issue in the scholarship after a discussion of the evolution of TJ mechanisms. The ICTJ defines TJ as “a range of approaches that societies undertake to reckon with legacies of widespread or systematic human rights abuse as they move from a period of violent conflict or oppression towards peace, democracy, the rule of law, and respect for individual and collective rights” (ICTJ 2018, “What is Transitional Justice,” para. 1). The center was established on March 1, 2001, in response to the growing need for and interest in TJ. Its vision is to help societies “heal by accounting for and addressing past crimes after a period of repressive rule or armed conflict” (ICTJ 2018, “Mission and History,” para. 1). Mechanisms of TJ, however, have existed for much longer. The Nuremburg and Tokyo Trials carried out following WWII are the modern points of origin for these institutions and International Law more generally.3 Although these processes are largely regarded as a victor’s justice in which the allies or victors punished the highest-ranking officials without the threat of recourse or accountability for their own war crimes, it provides an important precedent for International Law and future TJ institutions— impunity for the worst crimes will not be tolerated.

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The first institution of import—for TJ —to follow these trials was a TC created in 1974 by President Idi Amin in Uganda.4 Although the Commission of Inquiry into the Disappearances of People in Uganda since 25 January, 1971, was used by Idi Amin as political cover and his pattern of abuse continued—if not intensified—its establishment is the starting point for what we now refer to as a truth commission. While Amin’s commission never publicly released a report, it did carry out many of the functions that scholars point to as defining characteristics of a TC. It was a temporary body established in response to public demands and mandated to investigate widespread disappearances—a violation of human rights. The TC was officially sanctioned by the government, received international attention, and held public hearings. The commission found that two arms of Amin’s government were responsible for a majority of the disappearances investigated and even suggested that armed personnel be trained in human rights standards, which led to retaliation against the commissioners of the TC from Amin’s government. One of the greatest institutional shortcomings of the first Ugandan TC is that it only released a confidential report to Amin. More importantly, though, the commission did not contribute to the kinds of outcomes commonly associated with TCs. Instead Amin’s government continued a campaign of repression and torture in Uganda. Uganda fluctuated in and out of conflict in the years following the commission. I believe this is why much of the TJ scholarship ignores the first Ugandan TC. This is a disservice to both policy and scholarship, however, as Uganda’s TC provides a good illustration of how TCs can be used as political tools—something that the scholarship and policy world alike have taken too long to acknowledge. Until recently, idealistic and ideological goals dominated discussions of TJ and TCs, examples that provide insight into a more complex reality were overlooked or discredited as a matter of course. Definitional issues and sample selection have created longstanding problems within the TJ literature (Stewart and Wiebelhaus-Brahm 2017). The first significant diffusion or wave of TCs spread throughout Latin America during the 1980s when many countries adopted TCs as they transitioned out of authoritarian rule toward democracy. Often these TCs were formed as the result of a compromise between competing groups or situations of dual sovereignty—where prosecutions were not possible, but preserving peace without complete denial of prior abuses was desired. In fact, policy makers and advocates alike long viewed the TC as political compromise or a weaker alternative to trials (Ben-Josef Hirsch 2014). In Latin America, though, civil society began to pressure governments to investigate and acknowledge mass human rights abuses.

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The first TC in Latin America was established in Bolivia in 1982. The National Commission for Investigation for Forced Disappearances (Comisión Nacional de Investigación de Desaparecidos) is often ignored because it disbanded before completing its objectives or releasing a report. The commission was established to investigate widespread disappearances committed by a series of military leaders over a period of 18 years of authoritarian military rule. While it did document about 150 cases of disappearances, the commission struggled with financial and professional support, making it impossible to carry out its mandate. The Bolivian TC simply did not have the resources necessary to identity remains or carry out its administrative functions and was disbanded in 1984. Bolivia has not experienced civil war since and has maintained an overall positive record of human rights performance in the years since. In 2017, the Bolivian government established a new TC to investigate human rights abuses committed during the military rule from 1964 to 1982. In announcing and welcoming the creation of the TC, the Inter-American Commission on Human Rights (IACHR) “emphasize[d] that the Truth Commission must act with independence regarding the government or other state power.”5 It is common for a more legitimate TC to follow a weaker and/ or failed initial attempt. Often identified as the point of origin for TC diffusion throughout Latin America, the National Commission on the Disappeared (Comisión Nacional sobre la Desaparición de Personas) carried out investigations into the disappearances of people during a seven-year period in which the military dictatorship tortured and disappeared those suspected of supporting leftist movements known as Argentina’s “Dirty War.” Civil society demanded the commission which was only in operation for nine months, from December 1983 to September 1984. The commission concluded that the government systematically implemented abusive practices to disappear at least 8960 people and intentionally destroyed evidence that demonstrated their culpability. The TC did not hold public hearings, but did televise a documentary about the commission’s work. The government also implemented a series of suggested reforms intended to enhance democracy. In accordance with the commission, reparations were eventually awarded, but only if individuals could prove they had been illegally detained during the period in question. The report of the commission Nunca Más or Never Again was published in English and Spanish and is still available online.6 In the years since the Argentinian TC, human rights have generally been respected and democratic elections have been held.

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Some domestic trials were carried out following the Nuremburg and Tokyo Trials, but it took until 1993 and 1995, respectively, for the United Nations (UN) Security Council to create the first ad-hoc international tribunals to address gross human rights violations committed during conflict. They did so in response to the widespread outrage regarding the ethnic cleansing and genocide that took place in what was then Yugoslavia and Rwanda. The International Criminal Tribunal for the Former Yugoslavia (ICTY) was established in The Hague, Netherlands, in 1993 while the first of the 1990s’ Balkans civil wars was ongoing. It was created to investigate the worst offenders of the wars in the former Yugoslavia—the perpetrators responsible for systematic violence. Originally mandated to be in ­operation for a decade, the ICTY only officially closed on December 31, 2017. During its operation the court indicted 161 individuals, at least 90 of whom were convicted and an  additional 13 of whom were referred to domestic courts for trial. The International Criminal Tribunal for Rwanda (ICTR) was established in Arusha, Tanzania, by the UN Security Council in 1995 to investigate the human rights violations perpetrated between January 1994 and December 1994. During its operation it indicted 93 and convicted 61 individuals.7 The court closed on December 31, 2015. Since the establishment of these two tribunals, ad-hoc courts for Sierra Leon, Cambodia, and Lebanon have also been created. Additionally, domestic criminal prosecutions seeking to punish war criminals following conflict have been increasingly implemented in states throughout the world. The TC gained unprecedented attention in 1995 when South Africa adopted the widely acclaimed Commission of Truth and Reconciliation which preceded the wave of TC adoption across post-conflict African states since. Arguably the start of a second and more focused wave of TJ, at least 32 TCs have been created since the South African TC, most of which reflect the ideas and goals it established (Ben-Joseph Hirsch 2014). After Apartheid ended in South Africa, the new government established an extensive three-department commission to investigate violations committed by both the state and the liberation movements during the 34-year-­long period of Apartheid. The commission’s mandate also held public hearings throughout the country, some of which were televised. Further, it named individual perpetrators in its final report which was widely distributed. The commission also granted amnesty to perpetrators in exchange for the truth. Only 15% of applications for amnesty were

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awarded though, greatly differentiating this type of amnesty from de facto amnesty or impunity.8 Finally, the commission also paid retributions to 2100 victims. The TC carried out its functions over a seven-year period beginning in December of 1995. While South Africa has improved in its overall  respect for human rights, it has not achieved the decrease in all levels of violence many hoped for following Apartheid.9 The primary mechanisms of TJ have all been attributed with attempting to accomplish some combination of the following goals: establishing a historical record, obtaining justice for victims, facilitating national reconciliation, and deterring further violations and abuses. Whether or not any of the mechanisms is capable of accomplishing such lofty goals is unclear. Existing comparisons of these bodies are limited and incomplete. In what remains, I address this shortcoming and contribute to a deeper understanding of TCs.

2.1   Truth Commissions Next, I discuss the definitional issues associated with TCs. Those who study TCs vary in their definitions of these bodies. Existing definitions delineate which TCs are and are not considered legitimate which has directly affected which TCs are studied and which are not. Some (Freeman 2006; Hayner 2010) use a strict definition of a TC, requiring that certain conditions be met. Others only consider official or state-sanctioned truth-­ telling bodies (Olsen et al. 2010a). This inconsistency in the scholarship reflects the great deal of variation that exists among TCs. For example, the Argentinean TC was created to investigate specific human rights abuses, while the Liberian TC was mandated only to establish a historical record and contribute to peace. These truth telling bodies and many others are designed to establish a record without punishing those responsible for committing the abuses. Other truth telling bodies, however, are designed to name names and assist with prosecutions (e.g. East Timor). These differences require further investigation and may, as I argue, separate those bodies that achieve institutional legitimacy—and thus contribute to peace and stability—from those that do not. Key among these definitional choices made by existing work is the requirement by most that TCs be state-sanctioned (Hayner 1994; Taylor and Dukalskis 2012; Freeman 2006; Dancy et al. 2010; Wiebelhaus-­Brahm 2010). Non-governmental investigations are significant, though, and excluding these bodies from analysis limits our collective understanding of TCs (Backer 2003).

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TCs that are not state-sponsored are excluded from most examinations of TCs. Brazil’s commission of inquiry, Nunca Máis, for example, was an unofficial body comprised of a research team led by the Archbishop of São Paulo and sponsored by the World Council of Churches. Between 1979 and 1982, 35 investigators copied military trial transcripts from the prior period of abuse with the goal to preserve the records and inform society of the abusive past. The preservation of these records resulted in the publication of the report Brasil: Nunca Máis in Portuguese and English. The report provided support for prosecutions in later years, encouraged the government to provide reparations to families of victims, and led to the eventual admission of abuse by the military. Yet this TC is excluded from most scholarly examinations of TCs.10 Hayner, one of the most influential scholars in the field, has provided detailed case studies and foundational understandings of most research concerning TCs. Her definition follows: TCs focus on the past; (2) they investigate a pattern of abuses over a period of time, rather than a specific event; (3) a TC is a temporary body, typically in operation for six months to two years, and completing its work with the submission of a report; and (4) these commissions are officially sanctioned, authorized or empowered by the state (and sometimes also by the armed opposition, as in a peace accord). (Hayner 2010, 14)

These definitional choices are normative and rely on an ends justify the means thought process, thereby limiting the scholarship’s investigation of TCs. I relax these definitional assumptions and explore the possibility that those commissions that do not meet Hayner’s criteria are equally likely to impact peace and stability. In fact, TCs with greater independence from the state may be more trustworthy in the eyes of the general populace and thus, more legitimate. Backer (2003), for instance, presents a supply and demand argument for TJ that highlights the importance of civil society in the process and explores several processes established by non-state actors. While many, but not all, adopt Hayner’s (2010) definition of TCs or some similar version, all place limitations which systematically exclude truth-seeking endeavors. “Studies have defined transitional justice mechanisms in different ways, resulting in a lack of consistency on what cases are included” (Stewart and Wiebelhaus-Brahm 2017). I broaden the scope and simply define a TC as a temporary body created to investigate mass abuses suffered during conflict, authoritarian rule, or a period of mass violence (e.g. civil war or an abusive regime). This definition includes TCs underexamined by existing literature.

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Notes 1. While these are the most common, Van der Merwe et al. (2009, 28) points out how extensive the range of processes are, “including (1) criminal prosecution by existing or ad hoc courts; (2) other formal sanctions, such as lustration, purges, and bannings of political parties; (3) reparations, which can be financial, material, or symbolic; (4) investigations conducted by truth commissions or independent inquiries; (5) institutional reform, including the establishment of formal human rights oversight (i.e. commission, ombudsman, public protector, special parliamentary committee), and the introduction, amendment, or restoration of a constitution; and (6) immunity through amnesties, pardons, and other limits on accountability and punishment.” 2. Bolivia established a TC in 1982, but the commission disbanded and failed to release a report. In Argentina, civil society pushed for the establishment of the commission. In addition, it fulfilled its mandate and published a final report, making it the first TC to be considered successful and thus the example I draw on here. 3. The Nuremburg Trials—officially the International Military Tribunal (IMT)—were carried out from November 1945 to October 1946  in Nuremburg, Germany. The Tokyo Trials—officially called the International Military Tribunal for the Far East (IMTFE)—were carried out in Tokyo, Japan, from May 1946 to November 1948. All but three indicted defendants were found guilty or died before their trial was over. 4. https://www.usip.org/publications/1974/06/truth-commissionuganda-74. 5. https://reliefweb.int/report/bolivia-plurinational-state/iachr-welcomesestablishment-truth-commission-bolivia. 6. http://web.archive.org/web/20031004074316/nuncamas.org/english/library/nevagain/nevagain_001.htm. 7. For more information about the ICTR, visit: http://unictr.irmct.org/. 8. Proactive amnesty processes are distinct from de facto amnesty. While both are studied within the broader TJ literature, they fall outside the scope of this research unless they are held as part of a TC. 9. Another mechanism of TJ is lustration or widespread purges of government officials associated with the previous regime. Lustration is intended to prevent those complicit with the former regime from holding office, thus preventing them from committing or enabling more human rights abuses. The collapse of the USSR led to lustration processes aimed at dismantling the Communist system throughout Eastern Europe. The examination of lustration processes is beyond the scope of the current research project. 10. Backer’s work on TCs is an exception.

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References Backer, D. 2003. Civil Society and Transitional Justice: Possibilities, Patterns and Prospects. Journal of Human Rights 2 (3): 297–313. Ben-Josef Hirsch, M. 2014. Ideational Change and the Emergence of the International Norm of Truth and Reconciliation Commissions. European Journal of International Relations 20 (3): 810–833. Dancy, Geoff, Hunjoon Kim, and Eric Wiebelhaus-Brahm. 2010. The Turn to Truth: Trends in Truth Commission Experimentation. Journal of Human Rights 9 (1): 45–64. Elster, Jon. 2004. Closing the Books: Transitional Justice in Historical Perspective. Cambridge: Cambridge University Press. Freeman, Mark. 2006. Truth Commissions and Procedural Fairness. Cambridge: Cambridge University Press. Hayner, P.B. 1994. Fifteen Truth Commissions-1974 to 1994: A Comparative Study. Human Rights Quarterly 16: 597. ———. 2010. Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions. Didcot: Taylor & Francis. International Center for Transitional Justice (ICTJ). 2018. Colombia [Online]. https://www.ictj.org/our-work/regions-and-countries/colombia. Meernik, James D., Angela D. Nichols, and Kimi L. King. 2010. The Impact of International Tribunals and Domestic Trials on Peace and Human Rights After Civil War. International Studies Perspectives 11 (4): 309–334. Olsen, T.D., L.A. Payne, and A.G. Reiter. 2010a. Transitional Justice in Balance: Comparing Processes, Weighing Efficacy. Washington, DC: US Institute of Peace. Olsen, Tricia D., Leigh A. Payne, Andrew G. Reiter, and Eric Wiebelhaus-Brahm. 2010c. When Truth Commissions Improve Human Rights. International Journal of Transitional Justice 4 (3): 457–476. Sikkink, Kathryn. 2011. The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics. New York: W. W. Norton and Company. Stewart, B., and E.  Wiebelhaus-Brahm. 2017. The Quantitative Turn in Transitional Justice Research: What Have We Learned About Impact? Transitional Justice Review 1 (5): 97–133. Taylor, L.K., and A. Dukalskis. 2012. Old Truths and New Politics Does Truth Commission Publicness Impact Democratization? Journal of Peace Research 49 (5): 671–684. Van der Merwe, H., V. Baxter, and A.R. Chapman. 2009. Assessing the Impact of Transitional Justice: Challenges for Empirical Research. Washington, DC: United States Institute for Peace (USIP). Wiebelhaus-Brahm, E. 2010. Truth Commissions and Transitional Societies: The Impact on Human Rights and Democracy. Didcot: Taylor and Francis.

CHAPTER 3

Truth Commission Legitimacy

Abstract  This chapter lays out the theoretical framework of the project. Truth  commissions are examined to identify key characteristics that foster legitimacy and increase the likelihood that truth commissions improve the societies in which they exist. I argue that authority demonstrated by a strong mandate, a break with the past signaled by a new regime, and transparency via public hearings and published reports are the key characteristics associated with improvements in respect for human rights and decreases in violence. Keywords  Truth commissions • Legitimacy • Reconciliation • Authority • Transparency Institutions must achieve legitimacy in a society before they are able to exert influence or carry out their functions successfully (Easton 1975; Friedman 1998; Yoo 2001). While legitimacy norms may vary, the general principles associated with establishing legitimacy are similar enough across time and space that we are able to identify general patterns. As temporary and ad-hoc institutions established in transitioning societies, truth commissions (TCs) have an opportunity to influence the transition process by creating a political space in which former adversaries can peacefully negotiate how to move forward without the fear of renewal of mass violence. I argue TCs are most likely to do this when they possess certain institutional characteristics—characteristics that send important political signals to the state and broader society alike. © The Author(s) 2019 A. D. Nichols, Impact, Legitimacy, and Limitations of Truth Commissions, Human Rights Interventions, https://doi.org/10.1007/978-3-030-11172-4_3

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If these signals suggest (1) some degree of independence from both the former and existing regime (authority); (2) fairness in its practices; and (3) transparency in its processes, particularly its investigations, then the TC enjoys a social and political legitimacy that enables its ability to impact society.1 Loyle and Davenport (2016, 133) describe the opposite process with their introduction of “Transitional Injustice” which they argue occurs when “the justice process is used to strengthen and legitimate an authoritarian regime.” Idi Amin’s use of the first TC is a good example of this misuse. As it is a political tool, when abused transitional justice (TJ) can be used to legitimate an authoritarian regime, making it even more essential that the characteristics necessary to establish TC legitimacy be identified. Legitimacy is a multi-dimensional concept comprised of two main kinds of support: specific and diffuse (Easton 1975). These can also be understood as short- and long-term support. The first of these places an emphasis on immediate gains and is often understood as support for a single issue. The latter represents a leap to a more holistic understanding of support that results in the long-term compliance of citizens with institutions and their policies, rulings, or laws even when some may disagree with said policies, rulings, or laws. In other words, diffuse support is support that persists even when tangible rewards for acts of support may not be forthcoming. If TCs are able to achieve specific support, then they are also able to create the political and social space necessary for discussing and addressing uncertainty about the past and future. That space, perhaps, is a key component to the transition process that TCs can provide if they have the appropriate institutional design. Diffuse support is more difficult to achieve and requires the establishment of permanent democratic institutions. To this end, grandiose goals of democracy and reconciliation have prevented scholars and perhaps practitioners as well from identifying the actual role that TCs play in the transitional period. Increasingly though scholars have begun to realize that TCs are not capable of achieving these ideals alone. For example, Gibson (2009, 124) recognizes that we have to lower our expectations: while TCs cannot create a democratic system or erase the past, they can contribute to societal transformation. They may foster a greater respect for human rights and decrease violence, thereby decreasing the overall risk of peace failure. TCs arguably have an impact at multiple levels: individual, community, and societal. In the context of South Africa, Gibson discusses two complementary models of TC success that exist—one at the micro-level and one at the macro-level. Gibson (2006, 130) describes the micro or individual level

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as being “essentially one of persuasive communications and attitude change.” This level of analysis is more likely to focus on outcomes associated with individual accountability and individual healing.2 At the macro-level, institutions of TJ may elevate the goals of the society above the need of individuals and communities. In order for these goals to be obtained, however, individuals and communities must buy-in to the process. Gibson (2009) suggests that societal change occurs when a TC is perceived as legitimate by the citizenry and makes recommendations as to which institutional characteristics should achieve this legitimacy best. While examining a particular case is valuable and often a necessary first step in research, the broader TC literature and this study are concerned with understanding when TCs, generally speaking, are effective. Thus, a focus on the generalizable relationships that exist is necessary. This follows the precedent of other work that has focused on establishing a more general understanding of TC impact (Olsen et al. 2010; Wiebelhaus-­Brahm 2010; Hayner 2010). Gibson measures the correlation between truth and reconciliation, as observed by ordinary South Africans (a random sample of all South Africans). His results include positive correlations showing a connection between the two concepts. The SATRC was successful in creating a collective memory among its citizens, which is often seen as the most important task of TCs. Gibson attributes that success to the following conditions: the TC was accessible to the public in a way that was easily digested; the public was aware and involved in the TC process; the commission was impartial, shared blame was distributed among all groups in South Africa; there were no compensations made, yet the focus was still on the victims; and the TC was supported and endorsed by two respected and trusted leaders, Tutu and Mandela. While he contemplates that these characteristics may be endogenous to South African culture and as a result have limited generalizability, he concludes that reconciliation may not have occurred without the proper institution (TC) in place to facilitate the process. He “posits an interactive effect between a system’s political culture and the efforts of a TC: each is dependent on the other, just as each is necessary to the effectiveness of the process.” I add to this the possibility that the TC process can spur a shift in the norms of a particular country’s political culture. Ben-Josef Hirsch (2014) argues that the international discussion around truth and reconciliation initiated by the South African TC helped create consensus around the norms associated with TJ and further, that the adaption of TJ mechanisms—or the process itself—contributes to norm change. The aftermath of conflict and/or abuse creates an opportunity in which norm change is likely, if not desired.

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Gibson focuses on individual reconciliation which can take much longer to occur. What I am interested in here is the broader changes that take place within TC countries. Further, Gibson’s understanding of societal transformation is rooted in reconciliation facilitated by collective memory and attitudinal change. This is, however, a level of reconciliation that may take much longer to achieve, perhaps even generations, and as such cannot be facilitated in the short time that TCs exist. This is more likely the result of a much longer healing process. Rather than being a means to an end, TCs provide a very important link between the end of an abusive period and the beginning of a new, albeit fragile peaceful period with less abuse. Methodological constraints have prevented research like Gibson’s in South Africa from being conducted globally. This is largely because survey data is difficult to procure, especially when the countries of interest are often devastated by war. Individual data this rich takes a great deal of time to collect and will not be available for all TCs for a long time, if ever. In addition, this data is unlikely to provide measures of initial support for TCs and/or respect for human rights. Given these limitations, I direct my attention to certain institutional characteristics that can be identified as having a significant impact on individual citizens’ support. Observing the mere absence or presence of these institutions does allow for this evaluation. Theoretically, this is because success is not simply reflected by the establishment of a TC, but by the particular functions of a TC. TCs may serve as something of a stepping stone that creates an important but temporary political and social space in the initial phase of the transitional period. Citizens and the state can use this as a tool or means of moving beyond the past given a consensus that the new bargaining space and the future be less violent. This consensus may be facilitated by a TC if it is created with the institutional characteristics necessary for achieving legitimacy. With these characteristics TCs are more likely to improve respect for human rights and decrease violence, thereby contributing to peace and stability in transitioning societies. TCs, then, may help to resolve credible commitment problems that can unravel peace, democratic transition, and other agreements. The credible commitment problem is based in the fact that former adversaries have more reason to doubt each other than they do to trust each other and thus are unlikely to keep agreements or refrain from using violence to achieve their goals. This is especially true when mass abuses have been committed. Whether they were committed during civil war or perpetrated by a former regime, a period of gross human rights violations

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is likely to undermine existing and future relationships. This is because prior behavior suggests that one side, both sides, or all sides will do whatever possible to achieve their goal(s) even if that means reneging on existing compromises or agreements. The presence of a TC may, however, remove difficult decisions about the past from the negotiating space while also incentivizing peaceful behavior in the present. TCs may accomplish this in at least two ways: First, they have the opportunity to create a system by which former abuses are addressed, thereby taking the adjudication out of the hands of former rivals. TCs are not entirely impartial mechanisms, but if enough impartiality can be demonstrated to the state and the citizenry, both will be less likely to settle grievances on their own and instead entrust these tasks to the TC. This seems especially likely if a TC has independence from the state. Second, TCs are a first step in changing domestic norms. Most importantly, if impunity is no longer the status quo, everyone is more likely to behave (i.e. the state will not repress and the citizens will not participate in violence). In other words, fear of sanction for abuses by the TC may encourage a more peaceful approach to the post-conflict environment. TCs often occur in the most tenuous environments, where difficult compromises between two or more parties have been reached. Usually, these parties have a record of behavior that makes them untrustworthy. A legitimate TC can increase the level of trust between former enemies, which assists in making commitments more credible or the existing fragile peace more binding. What is essential for this to occur, however, is that the TCs achieve legitimacy. The minimal standard for legitimacy from an ICTJ book on truth-seeking states, A perception of legitimacy is essential for a truth commission to be successful. The public’s confidence that the commission is genuine will improve the willingness of victims, witnesses, and the public to participate, and facilitate access to information. Legitimacy can also protect the commission from political opponents invested in maintaining silence or denial about past abuse.” (González and Varney 2013, 21)

As legitimacy has a normative element, it is difficult to both determine and observe. People’s perceptions of legitimacy are informed by their own beliefs concerning right and wrong; institutions thus are legitimate when people believe them to be rightful in some, if not many, regard(s) (Friedman 1998). Yoo (2001) adds that legitimacy is achieved when institutions can carry out

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unpopular policy or actions with mass compliance. In other words, belief in institutions leads to trust and respect, resulting in an effective or successful institution. Tyler (2006, 381) summarizes that legitimacy provides loyalty and a “reservoir of support” for institutions emphasizing that if institutions achieve and enjoy political legitimacy, they are able to operate more easily. Potentially, this support persists even during periods of crisis which is particularly important for countries undergoing transition as they are recovering from and remain for some time on the verge of returning to crisis. If TCs achieve legitimacy, society will respect the institution as the organized political space in which grievances about the past and concerns about the future are addressed, thereby increasing respect for human rights and decreasing overall violence. Gibson (2009, 137) defines legitimacy as “the belief that authorities, institutions, and social arrangements are appropriate, proper, and just.” I argue that TCs can achieve this legitimacy when they possess characteristics that signal to all parties that the commission is independent, just, and fair. I further posit that TCs may not necessarily establish a truth that all parties can agree upon—this is unlikely to be achieved in even the best of circumstances. Former adversaries instead often hold to their account of the abuses that occurred. TCs must, however, enjoy legitimacy such that citizens trust the commission to address these issues and, more importantly, see support for the commission as a means of increasing respect for human rights and contributing to a peaceful future. In other words, the TC does usually establish some official record of events. This “truth” though is not likely to include every perspective, and therefore not everyone will be convinced that it is the whole truth. Instead, the goal is to establish a “truth” that does its best to consider all accounts and is accepted by a majority of the population. This is more likely if the TC is able to achieve legitimacy first—with credibility comes trust. Thus, even if some segment of the population is unhappy with various aspects of the TC’s “truth,” they will accept the overall processes and findings of the commission if that commission is considered legitimate. In the best situations, TC legitimacy may transfer to the permanent institutions of the post-conflict or post-­authoritarian regime. Furthermore, this encourages norm evolution within society regarding how to deal with grievances— perceptions of fairness replace old suspicions, while repression and violence become less likely.

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An examination of Bosnia and Herzegovina (BiH) provides a good counterexample of such processes. Dragović-Soso (2016, 294) attributes part of BiH’s failure to establish a TC, despite advocates’ efforts, to “insurmountable problems of domestic legitimacy.” He describes how the TC faced problems of authenticity and legitimacy, as there was no regime change and many of the country’s nationalist politicians were still in power. Salient divisions contributed to fear and mistrust of any processes focused on supposed national reconciliation undermining the perceived legitimacy of a Bosnian TC. This combined with a focus on the already established ICTY made establishing a TC an impossibility in BiH. TCs may more broadly be understood as national human rights institutions (NHRI), defined as domestic bodies that intersect government and civil society, created to monitor a state’s human rights practices (Smith 2006). As such the NHRI literature can be used to further support the relationship I suggest exists between TC legitimacy and impact made here. A delicate balance is necessary for NHRIs to be satisfactory to both domestic and international audiences (which is directly related to these bodies’ respective successes and failures). NHRIs are understood to be successful when they are perceived as legitimate or credible and are able to empower citizens (Smith 2006). Visibility, fairness, and independence seem to have the greatest bearing on whether or not NHRIs can achieve this necessary precondition—legitimacy—to success. These three qualities, which are similar to the three components of legitimacy, I suggest are necessary for TCs to have a positive impact on society. In the paragraphs below, I explain these characteristics in greater detail.

3.1   Authority The first of these—authority—refers to an institution’s jurisdiction, reach, or scope. TCs can be tasked with carrying out a variety of functions; but when legitimate, they have the authority to investigate human rights abuses, and the ability to act as a result of those investigations. I define authority in the context of TJ institutions as the ability of these bodies to carry out investigative functions, thus differentiating those bodies that merely whitewash crimes of the past from those that reveal difficult realities. Although these bodies vary in the actions they carry out, they may or may not have the ability to investigate human rights abuses, suggest reconciliatory measures, name the names of those responsible for committing abuses, and/or make policy recommendations.

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A mandate often instills some or all of these powers to the TC. What is essential, however, is that TCs are created with enough teeth to actually investigate broad human rights abuses. When the government creates a TC with powers so limited that they are only allowed to investigate a particular abuse or a particular period of time, citizens are less likely to perceive it as a credible institution. Likewise, the government is less likely to be constrained by these investigations or fear recourse for new human rights violations. Put another way, one manner by which TCs preserve the peace in the interim is through the threat of revealing bad behavior. They send a signal that abuses will not go unrecognized—impunity is no longer an option. The degree of authority that TJ institutions possess has a direct impact on the legitimacy of the institution. When the institution is active and able (able in the sense that the state or any other authority cannot prevent a TC’s ability to carry out its investigation) to carry out its functions, broader society as well as elites will more likely view it as legitimate. Society and the state have greater confidence in TCs that are awarded this authority. Citizens are more likely to believe that nothing is being hidden and elites are less likely to suspect corruption when they can observe the independence of the TC. This is necessary for the TC to carry out its functions. When a TC is functioning well, it creates momentum that may change norms and preserve peace in the interim period. When, on the other hand, a TC has a limited scope of investigation and/or very constrained power, it is unable to function properly, thus preventing it from contributing to norm change or preserving peace. Additionally, when authority is granted to the TC, the state is less likely to commit human rights violations (if for no other reason) out of fear of recourse by the TC. If a TC is established with independence, meaning the state cannot simply cover up its mistakes with the commission, the state is less likely to participate in abuses. Society, then, is more likely to maintain order when TJ institutions have greater authority. Contrasting two important cases illustrates this distinction: The Commission of Inquiry into the Disappearances of People in Uganda since January 25, 1971, and the SATRC. The TC created by Idi Amin in Uganda failed to accomplish much. It was established to only investigate disappearances that occurred from January 25, 1971, until 1974 and was actively constrained by the Amin regime. Though it held public hearings and was state sponsored, the four men who served as commissioners were targeted by the state in reprisal for their work on the commission, and the

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only report ever distributed was a confidential report to Amin himself. This TC lacked authority. Instead, it merely served as a political tool used to distract the international community from the massive human rights violations being committed by Amin’s government. The SATRC, on the other hand, was created to investigate broad human rights violations committed by both the state and the liberation movements during Apartheid. Additionally, the SATRC was charged with contributing to reconciliation, emphasized victims, held public hearings, and engaged in outreach to involve and inform broader society. It enjoyed independence from the state and was comprised of 17 commissioners and approximately 300 staff members. It released its seven-volume final report to the public; it is still available for download on a government website.3 The SATRC is often referred to as a model TC and has been attributed with a great deal of success. In the years following the creation of the SATRC, South Africa’s respect for human rights increased (according to Amnesty and State Department reports), while the level of political violence declined (according to the SCAD).

3.2   Break with the Past Elster (2004, 1) defines TJ as a process that takes place after transition from one political regime to the next. Not all TCs follow regime change, though. Only 64% of the 45 TCs examined in this project followed a regime change, but as some of the examples already provided reveal, regime change likely assists in establishing TC legitimacy. If a new regime investigates the abuses of a former regime, citizens are more likely to believe in efforts to break with the past than if the same regime that was in power during the abuses mandates truth-seeking efforts. In these cases, citizens are likely to see the TC as an extension of the regime, rather than an independent institution. This is not without cause as TCs have been used as political cover by abusive regimes. Using the cases of Chad, Zimbabwe, and Uganda, Grodsky (2008) illustrates that initiators of TCs often see them as political tools. He argues they can be used as simply a means to gain international attention, aid, and acceptance without exercising any practices that actually contribute to improvements in human rights or a reduction in violence. In fact, Grodsky notes that TCs may be more publicized outside of the country than they are domestically. The two factors he identifies as significant to determining whether or not a repressive regime will conduct a TC are: (1) “presence of

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external incentives (foreign aid)” and (2) “the level of political control enjoyed by old elites in the new system” (Grodsky 2008, 282). Of note here is that a lack of regime change seems to increase the likelihood that the TC is simply a political tool. I argue that when a TC is created by a new regime, it signals a break from the past. New regimes have an arguably clean slate, and thus are more likely to be perceived as fair. Citizens in transitioning states are aware of the terrible abuses of the prior regime and its failure given whatever period of turmoil they are attempting to recover from. While intuition may suggest that citizens are more likely to trust who or what they know, in this case, the opposite seems more likely to be true. This is limited, however, to domestic actors. TCs are created by the existing regime, a new regime, or some outside source—the United Nations, a partnership between an NGO and civil society groups, or some combination of these. I argue that a new domestic regime creating the commission sends the strongest signal of fairness. I further explain the reasoning behind this proposition in the following paragraphs. The existing regime (the regime that was in power during the conflict or period of mass abuse) is most likely responsible for committing abuses. As a result, whatever precedents it has set regarding treatment of adversaries remain. Often this precedent is one of repression and violence. Sri Lanka provides a good example of how a government that participated in mass abuse has little chance of being perceived as fair. The conflict between the government and the Tamils has been problematic for over 25 years. In December of 1994, while still embroiled in civil war the Sri Lankan government established three zonal commissions and one All Island Commission to investigate the disappearances of people from January 1, 1988, to December 1994. Although the zonal commissions investigated 15,000 disappearances, it only  referred 10,136 to the All Island Commission. About half of these were investigated. The remainder plus an additional 10,000 complaints were not pursued, however, as the commission claimed they were outside of their jurisdiction. Unsolved political murders, renewed disappearances, and the use of torture by police throughout the island, coupled with stalled investigations into disappearance cases already handed over to courts resulted in a lack of support and credibility of the TC.  Additionally, the information gathered by the commission was barred from being used in subsequent court proceedings. These overt acts by the government to undermine the effectiveness of the TC undermined the entire TC process. Citizens are

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unlikely to trust institutions that function in a one-sided manner such as this, and governments are unlikely to feel constrained when they clearly have the power to thwart investigations. Nigeria provides an example of how a TC established by a new regime can operate more fairly than a TC established by an existing regime. Sani Abacha’s abusive regime ruled Nigeria from the time he took over in 1993 until he died in 1998. Olusegun Obasanjo was then elected to power. Shortly after, he appointed a Human Rights Violations Investigation Commission (“Oputa Panel”) to investigate human rights abuses. Although the commission was only created to investigate abuses that occurred from 1984 to May 1999, it was determined necessary to extend investigations back to the year that Nigeria experienced its first military coup (1966). Adjusting when necessary and investigating a longer legacy of abuse illustrates the flexibility and fairness exhibited by the Nigerian TC. Since former adversaries are likely apprehensive about the actions of a TC, it seems plausible that the creator of a particular institution has some bearing on whether or not it is perceived as fair. If former adversaries believe that an institution treats everyone similarly regardless of former or existing alliances, they are more likely to give credence to the institution, thereby accepting its actions. This is least likely when (as in the case of Sri Lanka) the government responsible for a large portion of the abuses establishes the TC.  In transitioning societies, a change is more likely to foster hope, trust, and credibility if for no other reason than that the new government or creator of the TC is not the former regime. This is because the former adversaries need to believe that they can work within the TC to address their grievances instead of taking matters into their own hands, which in the worst of cases may result in violence. It may be that one side committed more abuses than the other and as such suffers a greater level of responsibility in the end, but this is only considered an acceptable finding when all sides perceive the TC as fair and therefore legitimate. Society will deem such a TC fair, and thus legitimate when citizens believe that all groups are equally likely to be the subject of investigation; this is most likely to be true when there is a shift in power or at a minimum a perceived fresh start. Put another way, a priori preferences about who will be investigated signal a lack of fairness and thus a lack of legitimacy. Old habits are hard to break; when these exist, the state is more likely to violate human rights—or be perceived as doing so—rather than fearing condemnation for abuses.

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It is important to also consider the creation of a TC by a third party. At first glance, third parties may seem best suited to arbitrate given that they are most likely to have no direct stake in the outcome of the proceedings. Third parties, however, may encounter serious limitations when attempting to oversee TJ efforts. First, they are outsiders and may be perceived as such. Their understanding of the culture, abuses that occurred, and the process necessary to move society forward may not be accurate and will likely be met by most with apprehension regardless of the accuracy of their assessments. Second, having no stake in the outcome of the proceedings may actually work to their disadvantage. By having nothing to lose, society may question the third party’s commitment and investment in the TC and post-conflict process. Finally, third parties may not be as likely as a new regime to contribute to long-term norm shifts. They may keep the peace in the short term, but without fostering cooperation in as committed a manner as a new regime. Unlike the new regime that is accountable to the citizenry and the elites, third parties may be too removed from the domestic environment. Perhaps what matters here is striking a balance between a break from the past and neutrality. The UN, which is the most frequent third-party creator of TCs, has little to lose and as a result may seem less credible and more imposing, thereby undermining the TC process. Or it may be seen as advancing the international agenda of the UN and not that of the country’s TC.

3.3   Transparency Transparency the third component of TC legitimacy reflects the degree to which an institution communicates its work and findings to the target society. A lack of transparency, on the other hand, may give the appearance that the institution is merely a body created to whitewash the abuses of the past. Most simply stated, transparency is openness and is best exhibited through the holding of public hearings and the release of a TC’s findings in a final report. The Sierra Leone Truth and Reconciliation Commission, for example, not only presented a final report to the Presidents of Sierra Leon and the United Nations Security Council, but also released the report publicly. Additionally, versions were created specifically for secondary schools and children.4 This is one manner by which TCs can increase transparency and inform the public of their processes; communicating TC processes to the public is essential. At the opposite end of the spectrum, the Ugandan TC failed to achieve transparency. A report was written and given to then President Amin, but never released publicly.

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Another manner by which TCs are able to achieve transparency is by holding public hearings. Once again, the SATRC is looked to as an example. The SATRC held public hearings in which 2000 victims provided testimony. Some of the proceedings were even broadcast on television and the radio.5 Only about one in five TCs, however, holds public hearings. In Chile, for example, two TCs were created, but neither held public hearings. I expect that former victims and perpetrators are more likely to uphold and respect an institution’s actions when they believe them to be the product of a powerful, fair, and transparent process. Gibson (2006, 125) states that TC effectiveness is dependent upon its ability to attract attention from citizens (i.e. transparency). On the other hand, weak transparency or a failure of the commission to engage the public is likely to foster the societal perception that a TC will merely obscure past abuses. Taylor and Dukalskis (2012) find that “[t]he more public a truth commissions is, the more it will contribute to democratization,” providing further support for the idea that transparency in TC practices matters. This is true for two complementary reasons. First, citizens must know about a process for it to have an immediate impact on their lives. Second, transparency constrains a TC by acting as a “check” on its practices. All actors are more likely to behave when the threat of exposure exists. Next, there is a stark difference between benign aspects of transparency and proactive efforts to inform and affect broader society. Although transparency can manifest passively through the media or other third-party actors (e.g. UN, NGOs), direct engagement by TCs is likely to be the most effective at portraying a sense of legitimacy to the broader citizenry. Those institutions that actively attempt to engage society will be the most legitimate and, subsequently, the most successful. This is because, like any other political institution, there is some cost associated with individuals gaining information. Attempts by the institution to lower these information costs increases society’s broader understanding of that institution and its practices, thereby increasing its legitimacy. This is particularly important during periods of transition as citizens in transitioning societies have an increased incentive to distrust, are particularity sensitive to cues from new institutions, and respond accordingly. Given a higher degree of transparency, the state is likely to exercise greater respect for human rights. Specifically, the costs associated with revealing abuses are particularly high for states both domestically and internationally, making them far less likely to allow that information to be revealed. Domestically, states must

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consider the recourse of citizens when faced with information about abuses. What will citizens do with the information given? If democratic institutions have been established, will this information threaten the regimes reign of power? If not, will citizens participate in protests or violence as a result of the revelations? At the international level, states have reason to fear the power of naming and shaming (Hafner-Burton 2008). Findings of prior work on the effects of naming and shaming include reduced foreign aid (Lebovic and Voeten 2009), reduced foreign direct investment (Richards et  al.  2001), and the creation of new domestic NGOs which only increase the visibility of state behavior (Conrad and Ritter 2013). Consequently, when states do allow the dissemination of TC processes and findings to be communicated openly, they inadvertently express a commitment to abstaining from (further) abuses. Thus, holding public hearings or releasing a report of a TC’s findings increases respect for human rights and decreases violence. “It is no exaggeration to state that the successes or failure of a truth commission will crucially depend upon the fairness of its proceedings” (Freeman 2006, xi–xii). Gibson (2006, 137) defines fairness procedurally stating that citizens accept institutions as legitimate when they are allowed to participate in proceedings. Other scholars from the broader legitimacy literature adopt a similar position, all emphasizing the importance of fair procedures for achieving political legitimacy (Carpini et al. 2004; Booth and Seligson 2009; Sunshine and Tyler 2003). In other words, when the citizenry is allowed to participate in the commission, they take ownership, are less likely to view the TC as one-sided, and are thus more likely to be supportive of the commission’s processes and findings. The participation of the citizenry is necessary for transparency.

Notes 1. I note here there is a possibility that impact may also vary with the characteristics of the trauma that is the subject of the TC. Some TCs might have more effect following a civil war with X traits than following a democratic transition (no civil war) with Z traits. Elster (2004, 77) cynically notes, “I do not aim at presenting a ‘theory of transitional justice’ as in my earlier work on local justice. I have found the context-dependence of the phenomena to be an insuperable obstacle to generalization. The closest I come to a ‘law’ of TJ is that the intensity of the demand for retribution decreases both with the time interval between the wrongdoings and the transition and with the interval between the transition and the trials.”

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While I and other scholars (as evident by recent scholarship seeking a generalizable understanding of the impact of these processes) are not as cynical about these prospects, the concerns about context and origin are important and deserve attention in their own right. While I control for these diverging transitions in Chap. 4, I do not unpack these ideas theoretically in this stage of the project. There are a lot of questions left to ask about this topic. This is a first step in a research program that will ask a larger set of questions; investigating the origin of TCs and other TJ mechanisms is an important subset of these questions and a crucial next step for this area of scholarship. 2. Explaining individual accountability or the sanctioning of perpetrators is not the goal of this project. In fact, that is not an intended goal or outcome of truth commissions writ large. This is a macro-level analysis of TCs. 3. http://www.justice.gov.za/trc/. 4. http://www.usip.org/publications/truth-commission-sierra-leone. 5. http://www.usip.org/publications/truth-commission-south-africa.

References Ben-Josef Hirsch, M. 2014. Ideational Change and the Emergence of the International Norm of Truth and Reconciliation Commissions. European Journal of International Relations 20 (3): 810–833. Booth, John A., and Mitchell A. Seligson. 2009. The Legitimacy Puzzle in Latin America: Political Support and Democracy in Eight Nations. Cambridge: Cambridge University Press. Carpini, Michael X.  Delli, Fay Lomax Cook, and Lawrence R.  Jacobs. 2004. Public Deliberation, Discursive Participation, and Citizen Engagement: A Review of the Empirical Literature. Annual Review of Political Science 7: 315–344. Conrad, Courtenay R., and Emily Hencken Ritter. 2013. The Conflicting Effects of International Law: Domestic Institutions, Repression, and Dissent. Dragović-Soso, J. 2016. History of a Failure: Attempts to Create a National Truth and Reconciliation Commission in Bosnia and Herzegovina, 1997–2006. International Journal of Transitional Justice 10 (2): 292–310. Easton, D. 1975. A Re-Assessment of the Concept of Political Support. British Journal of Political Science 5 (4): 435–457. Elster, Jon. 2004. Closing the Books: Transitional Justice in Historical Perspective. Cambridge: Cambridge University Press. Freeman, Mark. 2006. Truth Commissions and Procedural Fairness. Cambridge: Cambridge University Press. Friedman, L.M. 1998. Taking Law and Society Seriously. Chicago-Kent Law Review 74: 529.

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Gibson, James L. 2006. The Contributions of Truth to Reconciliation Lessons from South Africa. Journal of Conflict Resolution 50 (3): 409–432. ———. 2009. On Legitimacy Theory and the Effectiveness of Truth Commissions. Law & Contemporary Problems 72: 123. González, Eduardo, and Howard Varney, eds. 2013. Truth Seeking: Elements of Creating an Effective Truth Commission. Brasilia: Amnesty Commission of the Ministry of Justice of Brazil; New York: International Center for Transitional Justice. Grodsky, Brian. 2008. Justice Without Transition: Truth Commissions in the Context of Repressive Rule. Human Rights Review 9 (3): 281–297. Hafner-Burton, Emilie M. 2008. Sticks and Stones: Naming and Shaming the Human Rights Enforcement Problem. International Organization 62 (Fall): 689–716. Hayner, P.B. 2010. Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions. Didcot: Taylor & Francis. Lebovic, James H., and Erik Voeten. 2009. The Cost of Shame: International Organizations and Foreign Aid in the Punishing of Human Rights Violators. Journal of Peace Research 46 (1): 79–97. Loyle, C.E., and C. Davenport. 2016. Transitional Injustice: Subverting Justice in Transition and Postconflict Societies. Journal of Human Rights 15 (1): 126–149. Olsen, T.D., L.A. Payne, and A.G. Reiter. 2010. Transitional Justice in Balance: Comparing Processes, Weighing Efficacy. Washington, DC: US Institute of Peace. Richards, David L., Ronald D. Gelleny, and David H. Sacko. 2001. Money with a Mean Streak? Foreign Economic Penetration and Government Respect for Human Rights in Developing Countries. International Studies Quarterly 45 (2): 219–239. Smith, Anne. 2006. The Unique Position of National Human Rights Institutions: A Mixed Blessing? Human Rights Quarterly 28 (4): 904–946. Sunshine, Jason, and Tom R.  Tyler. 2003. The Role of Procedural Justice and Legitimacy in Shaping Public Support for Policing. Law & Society Review 37 (3): 513–548. Taylor, L.K., and A. Dukalskis. 2012. Old Truths and New Politics Does Truth Commission Publicness Impact Democratization? Journal of Peace Research 49 (5): 671–684. Tyler, T.R. 2006. Psychological Perspectives on Legitimacy and Legitimation. Annual Review of Psychology 57: 375–400. Wiebelhaus-Brahm, E. 2010. Truth Commissions and Transitional Societies: The Impact on Human Rights and Democracy. Didcot: Taylor and Francis. Yoo, J.C. 2001. In Defense of the Court’s Legitimacy. University of Chicago Law Review 68: 775.

CHAPTER 4

Measuring Truth Commission Characteristics

Abstract  This chapter describes the truth commission characteristics dataset collected for this project. The data collected are a series of variables used to distinguish truth commissions from one another. The data are created using the United States Institute of Peace’s Digital Library to access primary and secondary source documents related to 45 truth commissions and inquiries of truth. Key variables as well as a handful of other interesting descriptive statistics are discussed. Keywords  Truth commission • Mandate • New regime • Transparency Existing truth commission (TC) datasets are limited because they generally contain little more than dummy variables that indicate the presence or absence of TCs, rather than their specific characteristics. As I have argued, however, TC characteristics are critical to understanding TC effectiveness. Some datasets contain limited additional information, but none are complete enough to provide the information necessary to test the theory developed in this project. The Transitional Justice Database, for example, includes observations of trials, TCs, amnesties, reparations, and lustration in 123 countries that experienced civil war or transitioned from authoritarian rule during the period 1970–2007.1 This data reports information on the dates of the mechanism, the level at which the mechanism operated © The Author(s) 2019 A. D. Nichols, Impact, Legitimacy, and Limitations of Truth Commissions, Human Rights Interventions, https://doi.org/10.1007/978-3-030-11172-4_4

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(domestic, international, or hybrid), and the target of the mechanism (state, non-state actors, or both). The Post-Conflict Justice Dataset provides a greater degree of context, but for a limited set of cases—trials, TCs, reparations, amnesties, purges, and exiles implemented within five years of the end of a conflict for all extra-systemic (colonial), internal, and internationalized internal conflicts with at least 25 battle-related deaths from 1946 to 2006. These limitations have, for example, resulted in the inclusion of only nine observations of TCs in this dataset. I define a TC as a temporary body created to investigate mass abuses suffered during conflict, authoritarian rule, or a period of mass violence (e.g. civil war or an abusive regime). I cast my net wide, but there remain a few examples that may be excluded. These are limited and the result of a few constraints. First, I had to ensure that I would have information comparable across cases. Among the challenges associated with attempting to build a detailed dataset of TC characteristics is the availability or lack thereof of primary information. Reports for the various commissions are sometimes available in English, but are often written in the country holding the TC’s language.  Next, detailed information regarding some TC attributes is so scarce that I was unable to collect everything I originally planned to collect.  Backer (2003) points out the importance of examining the contributions of TCs created by actors other than the government. All of the cases he discusses are included in my analysis with the exception of Russia and Cambodia. Both of these are excluded because memorialization or storage of information alone does not meet a minimum criterion to be considered a TC. As the measures needed to test my arguments concerning the TC characteristics are not available from another source, I create a new dataset. This dataset provides indicators of some of the key components of 45 TCs. The cases included, as well as the years of operation are listed in Table 4.1.2 I rely on information from the United States Institute of Peace (USIP) Truth Commission Digital Collection as the primary source for coding the variables in the dataset (USIP 2011).3 The collection provides background information on the composition of the TC, summaries of the key aspects of the TC (charter, mandate, commissioners and structure, dates of operation, report, findings, recommendations, and subsequent developments), as well as links to the official legislative texts establishing the TCs, and each commission’s final reports and findings. I also use the primary documents

  MEASURING TRUTH COMMISSION CHARACTERISTICS 

Table 4.1  Truth commissions Country Algeria Argentina Bolivia Brazil Burundi Cambodia Chad Chile Chile Cote d’Ivoire DRC Ecuador Ecuador El Salvador Ethiopia Germany Ghana Guatemala Haiti Honduras Honduras Kenya Liberia Mauritius Morocco Nepal Nigeria Panama Paraguay Peru Peru Rwanda Rwanda Serbia Sierra Leone Solomon Islands South Africa South Korea South Korea Timor-Leste Uganda Uganda Uruguay Zimbabwe

Year begin

Year end

2003 1983 1982 1979 1995 2006 1990 1990 2003 2000 2003 1996 2007 1992 1993 1995 2003 1997 1995 1993 2010 2009 2006 2009 2004 1990 1999 2001 2004 2001 1986 1999 2013 2002 2002 2010 1995 2000 2005 2002 1974 1986 2000 1983

2005 1984 1984 1982 1996 2012 1992 1991 2005 2001 2007 1997 2009 1993 2007 1998 2004 1999 1996 1994 2011 2012 2009 2012 2005 1991 2002 2002 2008 2003 1988 2012 1993 2003 2004 2012 2002 2002 2010 2005 1974 1994 2002 1984

43

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for some of the coding. In a few cases, the information necessary is missing from the USIP collection, and as such, I rely upon the sources identified in the references section of the USIP TC Digital Collection, as well as other secondary source materials to fill in those gaps.4

4.1   Dimensions of Authority I argue that the authority of transitional justice (TJ) institutions provides them with greater or lesser levels of institutional legitimacy. These bodies have a wide range and varying degrees of authority. I created a series of dummy variables to indicate whether or not a TC’s mandate awarded it the authority to carry out certain tasks. These include whether or not a TC was an investigative body, investigated only one or a few specified abuse(s), investigated human rights violations broadly, engaged in reconciliatory processes, and made policy recommendations. First, many but not all mechanisms of TJ are investigative bodies. This is a key component of legitimacy as it allows the institution of TJ to independently investigate the abuses that occurred in the past. Some bodies are designed to investigate one specific type of abuse or period of time. These bodies have a more limited authority than those bodies designed to investigate all human rights abuses. Whether or not a TC is given a broad, rather than a narrow mandate to merely examine one type of abuse (i.e. disappearances), event (i.e. post-election violence), or time period (i.e. the years in which a particular ruler was in power) is the first dummy variable I create to represent authority. TCs with broad mandates receive a 1; TCs with narrow mandates receive a 0. Next, some TCs are enabled to participate in reconciliatory measures. These can be vague or specific and range from promoting national reconciliation to suggesting or drafting a recommendation plan to facilitating the payment of reparations. While these reconciliatory measures vary, only about 27% of TCs in the dataset possess any kind of reconciliatory power. I distinguish those TCs with reconciliatory powers from those without by creating a second authority dummy variable. This variable equals 1 if the TC is awarded reconciliatory powers and a 0 otherwise. Lastly, I create a dummy variable that indicates whether or not a TC is granted the authority to contribute to institutional reform by suggesting policy changes or drafting laws. This is the power least often awarded to a TC, but representative of the highest degree of authority granted to TCs. If a TC is awarded this capability, it receives a 1. If not, it receives a 0.

  MEASURING TRUTH COMMISSION CHARACTERISTICS 

45

For the purposes of testing my theoretical argument regarding the authority of TCs and their ability to impact society, I create a variable that represents the dimensions of authority or mandate strength of TCs. This variable is constructed in a manner similar to Hartzell and Hoddie’s (2003) dimensions of power sharing in peace agreements. I simply add the dummy variables listed above together to get a score ranging from 0 to 3. A 0 indicates that minimal authority was awarded to the TC. A score of 1 indicates that one of the authoritative powers was awarded to the TC, a 2 indicates that two powers were awarded to the TC, and a 3 indicates that the maximum level of authority I observe in this dataset was awarded to the TC. No assumptions are made about the importance of one dimension over another. Instead a simple count of the number of dimensions is ­implemented. I considered testing the impact of all these levels of authority using a series of dummy variables rather than focusing on one threshold variable alone. These variables are not mutually exclusive; there are as many combinations of powers as possible given these variables. Finally, I considered using factor analysis to solve this problem, but the variables are not correlated at high enough rates to warrant such an approach. Figure 4.1 provides a map that indicates mandate strength in TC countries.

Fig. 4.1  Mandate strength5

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4.2   New Regime As noted, former enemies need to believe that the TC is unbiased in order to trust its actions. Who is targeting whom in the investigations is an important element component of a TC. Existing datasets provide information on the target of such institutions, but fail to inform who initiates the processes (Binningsbø et al. 2012; Olsen et al. 2010). I create a variable that indicates whether or not a new regime establishes the TC. In some cases, the same regime stays in place, but establishes a TC to address past abuses. In other cases, a new regime is responsible for creating the TC. And in still other cases, a third party (NGOs, IOs, or other states) initiates the TC process. I create a series of dummy variables that indicate which of these—current regime, new regime, or extra-state actor—created the TC. The logic here is fairly simple—a change in regime signals a change in state behavior to broader society. Citizens are likely to trust a new regime more than they would the former regime following a period of conflict or repression in which they perpetrated violence. It follows that if a new regime is associated with the TC, it will enjoy greater legitimacy. About 65% of TCs in the dataset were established by a new regime. Table 4.2 lists the TCs initiated by a new regime.

4.3   Transparency The third component of legitimacy, transparency, is necessary because if the public lacks access to or is unaware of the mechanism and the actions that it takes, the TC cannot/will not have an impact on society. I use two measures to test the impact of the transparency component of legitimacy. The first is a binary variable that indicates whether or not a final report was released; and the second is another binary variable that indicates whether or not public hearings were conducted. If the TC held at least one public hearing, the public hearing variable equals 1, otherwise the variable equals 0. While public hearings may vary from one TC to another, only about 20% of all TCs held public hearings, making this distinction difficult to represent. Table 4.3 lists the TCs that held public hearings. The second variable I create to represent transparency is whether or not a final report is released. Again, I do not distinguish between the makeup of reports released. The only requirement that must be met to equal 1 for the report variable is that the report is released to the actual public. Some TCs only issue or give the report to the President or Parliament. This variable distinguishes those reports that are only limited releases and those TCs that

  MEASURING TRUTH COMMISSION CHARACTERISTICS 

Table 4.2  New regime

47

Algeria Argentina Bolivia Chad Chile Chile Cote d’ Ivoire Democratic Republic of Congo Ecuador Ethiopia Germany Germany Ghana Haiti Honduras Honduras Liberia Mauritius Nepal Nigeria Panama Paraguay Peru Rwanda Serbia and Montenegro South Africa South Korea South Korea Timor-Leste Uganda Uruguay

did not release a report at all from those TCs that publish a final report. About 65% of TCs released a final report. Table 4.4 lists the countries and years in which a TC released a final report.

4.4   Other Characteristics The dataset contains additional variables for future research not considered in this iteration of the project. I discuss a few of those here as they provide some insight into trends associated with the creation of TCs. The first of these is the duration of the TC. This ranges from 1 to 14 years,

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Table 4.3  Public hearings

Table 4.4  Report released

Ghana Liberia Nigeria Peru Rwanda Solomon Islands South Africa Timor-Leste Uganda Uganda

Argentina Burundi Chad Chile Chile Ecuador El Salvador Ethiopia Germany Germany Ghana Guatemala Haiti Honduras Liberia Mauritius Morocco Nepal Panama Paraguay Peru Peru Rwanda Sierra Leone South Africa South Korea South Korea Sri Lanka Timor-Leste Uganda Uruguay

1984 2002 1992 1991 2009 2010 1993 1994 1994 1997 2005 1999 1996 1993 2009 2011 2005 1994 2002 2008 2003 1988 1993 2004 1998 2003 2010 1998 2005 1994 2003

49

  MEASURING TRUTH COMMISSION CHARACTERISTICS  14

14

13

12 10 8

4

0

2

1

2

4

3 1

2

1

2

1

1

2

1

2

3 1

2

1 1 1

1 1

5 5

4

3

3 3 3

1

2 2

1 1

2 2

2

3 1

2

1

Algeria Argentina Bolivia Brazil Burundi Chad Chile Chile Cote d'Ivoire Democratic Republic of Congo Ecuador Ecuador El Salvador Ethiopia Germany Germany Ghana Guatemala Haiti Hondarus Honduras Kenya Liberia Mauritius Morocco Nepal Nigeria Panama Paraguay Peru Peru Rwanda Rwanda Serbia and Montenegro Sierra Leone Solomon Islands South Africa South Korea South Korea Sri Lanka Timor-Leste Uganda Uganda Uruguay Zimbabwe

2

8

7

6

Fig. 4.2  Truth commission duration

with most TCs existing for an average of 3 years. How the duration of a commission constrains or facilitates its effectiveness is an important consideration for future work. Figure 4.2 provides information for the duration of each of the TCs in the dataset. Next, I display the years until TC adoption, which on average is 3.5 years. Most TCs are adopted immediately, but some take more than a decade to be established. For example, the TC that took the longest amount of time is Ecuador’s second TC. It took 18 years after the period of abuse to be created, as the first TC was disbanded before completing its work. This is not the only case where an early TC fails only to be followed by a better and more effective body later. Future research should also examine the relationships here and the importance of those early and often failed attempts that are often excluded from examinations of TCs. Further, the time between abuse and TC adoption may be a significant factor and should be explored accordingly. Figure 4.3 displays the number of years until adoption for all TCs in the dataset. Finally, I collect information on the number of TC commissioners. The number of commissioners ranges from 1 in Honduras to 400 in Ethiopia. The number and characteristics of the commissioners are yet another interesting area of exploration that future research should consider examining.6 Figure 4.4 displays the number of commissioners for each TC with the exception of Ethiopia as it distorts the presentation of the other data.

Algeria Argentina Bolivia Brazil Burundi Chad Chile Chile Cote d'Ivoire Democratic Republic of Congo Ecuador Ecuador El Salvador Germany Germany Ghana Guatemala Haiti Hondarus Honduras Kenya Liberia Mauritius Morocco Nepal Nigeria Panama Paraguay Peru Peru Rwanda Rwanda Serbia and Montenegro Sierra Leone Solomon Islands South Africa South Korea South Korea Sri Lanka Timor-Leste Uganda Uganda Uruguay Zimbabwe

Algeria Argentina Bolivia Brazil Burundi Chad Chile Chile Cote d'Ivoire Democratic Republic of Congo Ecuador Ecuador El Salvador Ethiopia Germany Germany Ghana Guatemala Haiti Hondarus Honduras Kenya Liberia Mauritius Morocco Nepal Nigeria Panama Paraguay Peru Peru Rwanda Rwanda Serbia and Montenegro Sierra Leone Solomon Islands South Africa South Korea South Korea Sri Lanka Timor-Leste Uganda Uganda Uruguay Zimbabwe

50 

4

2

0

10

5

0 6

A. D. NICHOLS

18

16 18

14

12 15

10 11

0 0 0 0 0 0

35

30

25

13 8 5 8 8

12

8

6

6

4 0 0 0

8 7 0 4

35 28

12 4 3 3 1 1 0 1 1

9 3 7 1 5

Fig. 4.4  Number of commissioners7 7

3 1

15

9 5 4 8 7

13

0 0

16 9

15

10 11

5 7

2 1 0 0 0

12 13 12 10

0

15 17

7 5

0 1 3

7

0 0

4 6 6

0

Fig. 4.3  Years until truth commission

40

36

20 27

15 15 11 4

  MEASURING TRUTH COMMISSION CHARACTERISTICS 

51

Notes 1. http://www.tjdbproject.com/. 2. When two TCs occur in one country, the characteristics of the first TC are used until the second TC is created. At that point, the information in the dataset is updated to reflect the new TC and its characteristics. 3. USIP: http://www.usip.org/publications/truth-commission-digitalcollection. 4. These data are available at my personal website: https://angeladnichols. weebly.com/. 5. Special thanks to Mark Shadden for help with the map. 6. The dataset also includes the number of women and international commissioners per truth commission. 7. Ethiopia’s TC had 400 commissioners. It is excluded from this figure for presentation purposes.

References Backer, D. 2003. Civil Society and Transitional Justice: Possibilities, Patterns and Prospects. Journal of Human Rights 2 (3): 297–313. Binningsbø, H.M., C.E. Loyle, S. Gates, and J. Elster. 2012. Armed Conflict and Post-Conflict Justice, 1946–2006: A Dataset. Journal of Peace Research 49 (5): 731–740. Hartzell, Caroline A., and Matthew Hoddie. 2003. Institutionalizing Peace: Power Sharing and Post-Civil War Conflict Management. American Journal of Political Science 47: 318–332. Olsen, T.D., L.A. Payne, and A.G. Reiter. 2010. Transitional Justice in the World, 1970–2007: Insights from a New Dataset. Journal of Peace Research 47 (6): 803–809. USIP. 2011. Truth Commission Digital Collection [Online]. http://www.usip. org/publications/truth-commission-digital-collection.

CHAPTER 5

Truth Commission Legitimacy and Human Rights

Abstract  This chapter is the first empirical chapter and a global test of my theory. I examine theoretically and statistically the impact that truth commissions with legitimacy characteristics have on respect for human rights. I find that truth commissions mandated to investigate broad human rights abuses respect human rights at a rate about 30% higher than countries with truth commissions designated to investigate specific abuses only. Additionally, truth commissions created by a new regime, which I argue are seen as more fair following conflict and/or repression by signaling a shift from the past, are associated with a greater respect for human rights compared to truth commissions created by the same regime that ruled during the trauma/conflict or those created by institutions  outside the state apparatus. These and other findings are discussed in this chapter. Keywords  Truth commission • Human rights • Legitimacy • Personal integrity rights “Truth commissions, in short, potentially promote human rights goals through official acknowledgement, accountability, and a normative, legal and institutional shift toward human rights protections” (Olsen et al. 2010, 460). Similarly, several scholars suggest that truth commissions (TCs) contribute to improvements in human rights performance through deterrence, accountability, and norm promotion (Wiebelhaus-Brahm 2010; Keck and Sikkink © The Author(s) 2019 A. D. Nichols, Impact, Legitimacy, and Limitations of Truth Commissions, Human Rights Interventions, https://doi.org/10.1007/978-3-030-11172-4_5

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1998). Despite these expectations, empirical results on the effect of TCs on human rights are mixed. Some (Olsen et al. 2010) suggest that TCs alone have a negative impact on human rights, but that when used alongside trials and amnesties, TCs have a positive impact on human rights. Olsen et  al. (2010) refer to this as a justice balance and argue that methodological constraints have led to the mixed findings thus far regarding TCs and their impact on human rights. While I agree with the assertion that methodological limitations are largely to blame for the lack of consistency in the scholarship, I am not convinced that new work has solved these problems. The continued binary conceptualization and operationalization of TC presence or absence is a problem that has not yet been addressed. This chapter examines the possibility that TCs with legitimacy characteristics improve respect for human rights. Although scholars admit that it is difficult to observe and measure TC impact, most agree that they should contribute to improvements in human rights. Existing work provides some insight as to how TCs may accomplish this goal, but has not tested their assertations. “Ideally, commissions include a broad rather than a circumscribed mandate; sufficient powers and resources; widely respected and unbiased commissioners; easy access to commission findings; and recommendations that are implemented by the government” (Olsen et  al. 2010, 459). Similarly, some argue that TCs likely contribute to improvements in human rights by exposing past violence to public scrutiny, which challenges existing beliefs about the prior abuses and encourages a shift in norms (Payne 2007; Olsen et  al. 2010). Freeman and Hayner (2003) use the word “legitimize” to describe the process by which TCs contribute to the norm shift necessary for societies recovering from a period of abuse to move toward a greater respect for human rights. Gibson’s (2004) work has been important for many reasons, but perhaps none is as significant as his finding that those South Africans who have accepted the SATRC’s findings are more supportive of human rights. In other words, the legitimacy of the TC is connected to societal norm shifts regarding human rights. TCs may be important catalysts for changing norms post-conflict/post-­ authoritarianism if they represent a break from the past and a more peaceful and progressive future. As a result, citizens may look to the TC for signs of what the future institutions in the country will be like. TCs, thus, have an immediate or direct impact on the institution itself, coupled by an indirect impact on broader society. This indirect impact is achieved by sending signals and cues that influence the norms established in the transitional period. These direct and indirect impacts combine and enable TCs

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to contribute to human rights improvements. I examine the relationship between three key TC characteristics and respect for human rights throughout the remainder of this chapter.

5.1   Authority When TCs are established, they are given a certain amount of authority. As discussed in Chap. 2, TCs take many forms and are created in a variety of manners. They are, however, usually created by a charter and mandate. The charter is a document signed by an executive, the legislature, or a third party (e.g. The UN Security Council). The mandate specifies the extent of the commission’s investigations. In other words, the mandate instructs the TC regarding its jurisdiction. Some are created with the narrowest possible scope, intended to investigate a particular crime over a particular time period. For example, the mandate for The Commission of Inquiry into the Disappearances of People in Uganda specified that the commission was to investigate and report only on disappearances that occurred during the first years of the Idi Amin government (January 25, 1971, to 1974). Other commissions are created with a bit more authority allowing for the investigation of all human rights violations. While many of these are still limited in time and may not extend to the entire period of abuse, they grant the commission the ability to investigate the extent of human rights abuses committed. One example of this is found in Haiti, where the commission’s mandate was to investigate all human rights abuses that occurred beginning with the September 30, 1991, coup that overthrew elected President Aristide and continued until his reappointment in September of 1994, only three of the ten years during which mass abuses were committed. A still broader mandate allows TCs the authority or power and flexibility to adjust as needed, rather than being restricted by a narrow investigation. This authority permits a TC to use new information to investigate the past abuses thoroughly, as well as update their operations and investigations. Narrow mandates, on the other hand, run the risk of undermining legitimacy as citizens are suspect that the narrowness reflects an attempt to cover up actions by the incumbents or some other elite faction. In other words, the public may perceive restricted mandates as too narrow and incapable of accomplishing anything more than the political objectives of those in power. If the TC is to be impactful, restrictions like these must be removed. Mandates must award TCs authority to investigate human rights abuses in a broad context in order to gain legitimacy.1

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Additional dimensions of authority include participating in reconciliatory measures and recommending institutional changes. Each of these strengthens the authority of a TC by giving it the power to suggest change and potentially sanction the government. When mandates award these powers to a TC, it sends a strong signal to both the citizenry and the government that the commission is independent, impartial, and will make recommendations based on what is best for moving the country forward rather than what is best for elites politically. When a TC has greater authority, it is more likely to impact government behavior as the government cannot simply manipulate the TC for its own gain. TCs that operate with authority separate from the government create an incentive for the government to treat former adversaries and all citizens with greater respect, thus increasing respect for personal integrity rights. This reasoning leads to my first hypothesis: Hypothesis 1  Countries that adopt truth commissions with greater authority practice greater respect for human rights than their counterparts with less authority.

5.2   New Regime I argue that TCs adopted by new governments signal a break from the past and, as a result create an incentive for the government to exercise respect for human rights. One reason for this is that TCs are understood as forward-­looking institutions (Olsen et al. 2010). They place the emphasis on the future and healing rather than the past and retribution. This is a hallmark of earlier qualitative work (Hayner 1994). The forward-looking and victim-centered approach is attributed with being the manner by which TCs achieve their goals. This is likely because they have the opportunity to alter public discourse by moving the conversation away from the past and replacing it with a proactive, forward-looking, and healing-­centric conversation. The variation in TCs’ ability to accomplish these things institutionally is underexamined. Rather, existing work assumes TCs that meet a set of criteria operate in this manner. I suggest that when TC processes are carried out by a new regime, they are more likely to operate according to the expectations of earlier work and therefore impact the overall level of respect for human rights. One of the most challenging tasks for any transitional justice (TJ) body to achieve is acceptance by society. New regimes are more likely to gain this acceptance or legitimacy as they offer a new beginning and signal fairness in an otherwise precarious environment.

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The optimism that a new regime enjoys also restricts its behavior. As they usually operate in transitioning environments, TCs have an opportunity to shape the behavior of the government, as well as the expectations of citizens. A new regime is not beholden to past behaviors, systems of patronage, or perceptions about their governing. This honeymoon period has two important implications: First, it gives the new regime an opportunity to shape their own reputation as a regime. Second, in light of this ability, new regimes have an increased incentive to operate in a manner that will be perceived as fair and just. This incentive extends to the TC process. As I mentioned before, in the tenuous environment that follows a period of mass abuse, citizens look for signals that inform their expectations about the future. When a new regime creates a TC, it must do so fairly as it reflects the new regime’s intentions and behavior. Thus, if the new regime simply creates an institution that serves as a mere smokescreen for abuse, it undermines its own prospects for long-term success. New regimes that create TCs make a de facto commitment to fairness by creating the opportunity for oversight. If a new regime takes this step, citizens are likely to perceive that the regime is likely to behave similarly in other areas of governing. Thus, new regimes are unlikely to spoil their efforts or image by committing human rights abuses if they are able to avoid doing so. In other words, if a new regime creates a TC, it sends a signal that it is going to practice fair and just governance, and their behavior in other areas should reflect the same commitment. Regimes that have been in power throughout the abuses suffered do not enjoy the opportunity that a fresh start creates and are beholden to existing patronage; the incentive structure that shapes behavior is different among these countries. Instead, they are most likely to create a TC in order to cover up their own abuses (e.g. Sri Lanka 1994, Uganda 1974). As a result, I expect TCs created by a new regime to practice greater respect for human rights than TCs created by the same regime. Hypothesis 2  Countries that adopt truth commissions governed by a new regime practice greater respect for human rights than their counterparts.

5.3   Transparency Transparency in TC processes refers to the free flow of information regarding the commissions’ efforts. Transparency played a large role in the SATRC and is one of the attributes for which the body is so highly acclaimed. The SATRC held public hearings throughout the country in a variety of forums.

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Attendance and participation were encouraged; testimony was broadcast on radio and television, setting a new standard for TJ processes. Some TCs, however, fail to make their processes public. I posit that transparency or the publicness of a TC is directly tied to legitimacy and impact.2 If a TC actively engages its citizens, it is more likely that citizens perceive the TC as legitimate and are impacted by its processes. Conversely, if the citizenry is unaware of the actions taken by the TC, it is difficult to earn legitimacy or have an impact. Specifically, as it pertains to respect for human rights, transparency in TC processes signals to society that the experiences of citizens matter. Public hearings provide folks an opportunity to tell their stories and acknowledge their suffering, thereby legitimizing the process for them. Further, the establishment of a TC signals that oversight is acceptable. This is key as periods of conflict and/or mass abuse are often marked by diverging stories, asymmetrical information, and/or confusion. In other words, during conflict, the flow of information is opaque. This lack of transparency is accompanied by a perception that every side has something to hide. Often that something can be classified as violations of human rights. In order to encourage greater respect for human rights, TCs must provide an avenue by which the public can be made aware of their operations. Beyond sharing whatever the investigative process reveals, transparency creates momentum for the establishment of a new (or perhaps rekindled) norm for state behavior—that human rights violations will be revealed and thus discouraged. Public hearings achieve this by engaging the citizenry throughout the TC process. The release of a final report achieves this at the conclusion of the TC process. Additionally, when TCs are transparent they signal that the state will refrain from committing human rights abuses. Similar to leaders in new democracies willingly creating checks and balances on their own positions of power to ensure long-term democratic success, new regimes that create TCs willingly open themselves up to oversight that has the potential to result in international pressure. States have reason to fear sanction by the international community that take a variety of forms. First, they may be on the receiving end of a naming and shaming campaign which draws attention to abuses and urges reform (Hafner-Burton 2008). Once this spotlight is shone, states face punishments including a reduction in foreign aid (Lebovic and Voeten 2009) and the creation of new domestic NGOs which only increase the visibility of state behavior (Conrad and Ritter 2013), thereby increasing oversight and the potential costs of abuses. Additionally, states that practice greater respect for human rights receive higher levels of

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foreign direct investment and portfolio investment (Richards et al. 2001), as well as increased likelihood of preferential trade agreements (HafnerBurton 2005, 2013). States that permit and even encourage the dissemination of TC proceedings and findings, thus, make an informal commitment to abstention of human rights abuses by tying their hands. States that allow TCs to hold public hearings and release a final report should refrain from violating personal integrity rights as the transparency associated with these functions makes these behaviors too costly to justify engaging in them. Hypothesis 3  Countries that adopt transparent truth commissions practice greater respect for human rights than their counterparts with less transparent truth commissions.

5.4   Research Design Dependent Variable In order to test the hypothesized relationships, I rely on a variable introduced in Fariss (2014). This new measure of human rights performance provides unbiased estimates of repression using several existing human rights datasets. This variable, similarly to the PTS and CIRI Human Rights Data (CIRI), is a measure of personal integrity abuse and reflects a government’s abuse of its citizens via extrajudicial killings, torture, disappearances, and political imprisonment. Fariss’ continuous latent mean variable ranges from −3.18 to 4.82, with 0 being the average for all the country-­ year units from 1949 to 2010. The units above or below 0 are standard deviations above or below the average; higher values represent greater respect. The argument behind the creation of this new dataset is simple: human rights practices have improved over time, but existing work fails to demonstrate this relationship as a result of systematic changes in the way data is collected and interpreted. To address this methodological limitation, the latent mean variable controls for what Farris refers to as the “changing standard of accountability.” I also conduct robustness tests using two measures most oft used in the TJ and human rights literatures. First, I use the physical integrity rights index from the Cingranelli and Richards’ human rights dataset (CIRI); it is an ordered variable with a 9-point scale of 0 to 8. A score of 0 indicates no respect for these four rights, whereas a score of 8 indicates full government respect for these four rights (Cingranelli and Richards 2010). The other

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measures used to conduct robustness tests are taken from the PTS, which provides two variables, one based on Amnesty International reports and another based on U.S.  Department of State reports, each takes a value between 1 and 5 (Wood and Gibney 2010). A value of 1 indicates the greatest level of respect for human rights, whereas a 5 indicates the least level of respect for human rights. This scale is inverted compared to the latent mean variable and the CIRI variable. Both datasets are coded using the U.S. Department of State Country Reports on Human Rights Practices and the Amnesty International Annual Reports. As previous work has indicated, there appears to be no consideration of TJ mechanisms in the creation of these scores (Kim and Sikkink 2010). Independent Variables The independent variables I employ are introduced in Chap. 3. I only briefly review them here as a reminder. Authority is determined by adding a series of dummy variables together to indicate whether or not a TC’s mandate awarded it the authority to carry out certain tasks, including whether or not it investigated human rights violations broadly, engaged in reconciliatory processes, or made policy recommendations. I use a dummy variable that indicates whether or not the TC investigations were carried out by a new regime to represent new regime. Finally, I use two dummy variables to represent transparency: one that indicates whether or not public hearings were held, and one that indicates whether or not a final report was released. Trials have been shown to have a deterrent effect on human rights abuses (Kim and Sikkink 2007; Olsen et  al. 2010). In order to control for this, I include a dummy variable that represents the presence or absence of criminal prosecutions. I rely on Kim and Sikkink (2007) for this measure as their criteria account for both international trials and domestic prosecutions. As mentioned above, I adopt a comprehensive definition of TCs, one that allows the widest scope of cases to be considered. Existing work only examines TCs that are state sponsored arguing that only those which are extensions of the state are capable of succeeding (Olsen et al. 2010; Taylor and Dukalskis 2012; Freeman 2006; Wiebelhaus-Brahm 2010; Hayner 1994, 2010). In other words, existing work predetermines what constitutes legitimacy. I relax this assumption and as a result must control for this distinction. I create a dummy variable that equals 1 if a TC is state sponsored and 0 if it is not. Sixty-one percent of cases are sponsored by the

61

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Table 5.1  Summary statistics: independent variables Variable First TC in country State sponsored Authority New regime Public hearings Report released Trials Population (log) Polity 2 ∆ GDP

Mean

S.D.

Min.

Max.

N

0.844 0.613 1.286 0.651 0.204 0.615 0.396 16.564 4.024 150.046

0.363 0.487 0.690 0.477 0.404 0.487 0.49 1.083 5.088 568

0 0 0 0 0 0 0 13.196 −7 −4493.551

1 1 3 1 1 1 1 19.088 10 3646.71

538 538 531 538 538 537 538 531 531 501

Table 5.2  Cross-correlation of independent variables Variables

First TC

State sponsored

Authority

New regime

Public hearings

Report released

First TC State sponsored Authority New regime Public hearings Report released Trials

1.000 0.171

1.000

−0.1654 −0.311

0.006 0.332

1.000 0.088

1.000

−0.380

0.091

0.291

0.245

1.000

−0.0387

0.171

−0.002

0.009

−0.064

1.000

0.250

0.317

0.136

0.108

−0.036

0.227

Trials

1.000

state. Information from Freeman (2006) is relied upon to create this variable. Table  5.1 reports summary statistics for all right-side variables. Table 5.2 reports cross-correlations for the same variables. I control for several other national-level variables, namely those previously shown to have an impact on respect for personal integrity rights. First, as democracy reduces repression (Davenport 1999; Poe and Tate 1994), I control for regime type using the Polity IV project’s polity 2 measure, which is a 21-point scale ranging from −10 to 10, where higher values represent more democratic states (Marshall and Jaggers 2002). Further, to account for the possibility that regime type has a non-linear or inverted-U-shaped influence on respect for human rights, I also include a

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squared version of this variable in my models. Next, I control for findings that link better economic conditions to better human rights performance (Poe et al. 1999; Poe and Tate 1994) using the change in GDP per capita. Finally, I control for population, as larger populations are more likely to experience social unrest (Fearon and Laitin 2003). Economic and population data are taken from the World Bank Development Indicators.3 Model Specification My primary dependent variable, the dynamic latent physical integrity variable, is a standard, continuous variable which allows for the use of a basic linear regression. I present two models using this variable. The first model provides results using only my theoretically derived independent variables. I introduce controls in a second, expanded model. I use OLS with robust standard errors clustered by country for both of these models. The tests used for robustness checks require a different model. The CIRI and PTS variables are ordered variables with a range of either 0–8 or 1–5. Two methods have become common for testing the impact on this particular variable in the human rights literature. The first is an ordered logit or ­probit model, but this presents a problem—using ordered probit or logit prevents country fixed effects from being included (Neumayer 2005). In earnest, however, robust standard errors, clustered by country code, are reported. The other method used is a liner-fixed effects estimator or ordinary least squares (OLS) with fixed effects. I only report the ordered probit results here, as there is no significant difference between the results produced between the two models.

5.5   Results Table 5.3 reports the main findings of this analysis. Here, I report the results from the restricted primary model as well as the full primary model. The dynamic latent physical integrity measure is the dependent variable. I use OLS to estimate the models and report robust standard errors clustered by country. The results are consistent between the two models, indicating that the predicted relationships are not fragile. In other words, even when I control for factors known to have an impact on respect for human rights, the relationships predicted in the restricted model hold. Additionally, robustness checks that replace the existing dependent variable with a lagged dependent variable produce results almost identical to those reported. This exercise demonstrates that the results do not differ even if

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Table 5.3  OLS: dynamic latent physical integrity variable Variable Authority New regime Public hearings Report released Prosecutions State sponsored Population (logged) Polity 2 Polity 2 sq ∆ GDP Intercept N R2 F(4,33)

Restricted (s.e.)

Full (s.e.)

0.487 (0.146)** 0.940 (0.267)*** −0.835 (0.298)*** 0.035 (0.180)

0.240 (0.102)** 0.651 (0.173)*** −0.439 (0.201)** 0.049 (0.117) −0.190 (0.170) 0.055 (0.140) −0.237 (0.091)** 0.031 (0.028) 0.015 (0.004) ∗∗∗ 0.0002 (0.000)*** 2.181 (1.664)* 490 0.608 18.39

−1.435 (0.236)*** 530 0.310 9.69

Significance levels: *10%; **5%; ***1%

Table 5.4  Ordered probit: CIRI Variable Authority New regime Public hearings Report released Prosecutions State sponsored Population (logged) Polity 2 Polity 2 sq ∆ GDP N Log-likelihood X2

β (s.e.) −0.187 (0.140) −0.537** (0.253) 0.555** (0.229) 0.185 (0.154) −0.257 (0.239) −0.105 (0.211) 0.293*** (0.130) −0.027 (0.038) −0.021*** (0.006) −0.00007** (0.00005) 479 −838.538 381.24

Significance levels: *10%; **5%; ***1%

time is a factor—if the TC characteristics theorized to have an impact on the state’s respect for human rights have a delayed effect.4 Generally speaking, the results support my hypotheses. Below I discuss these findings, the departures from expectations, and the resulting implications in greater detail. The remaining models estimated for robustness are consistent across models and are therefore discussed together. Table 5.4 reports the

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Table 5.5  Ordered probit: state department (PTS) Variable Authority New regime Public hearings Report released Prosecutions State sponsored Population (logged) Polity 2 Polity 2 sq ∆ GDP N Log-likelihood χ2

β (s.e.) −0.028 (0.134) −0.974*** (0.261) 0.621** (0.241) 0.073 (0.183) 0.316 (0.282) −0.059 (0.217) 0.282** (0.121) −0.019 (0.046) −0.024*** (0.007) −0.0001 (0.000) 490 −541.966 108.23

Significance levels: *10%; **5%; ***1%

ordered probit results for CIRI, Tables 5.5 and 5.6 report the ordered probit results for PTS—state department and amnesty scores, respectively. First, I test whether or not TCs with greater authority—represented by my dimensions of authority variable—encourage states to engage in better human rights practices. This variable is positive and statistically significant, which provides support for the hypothesized relationship. This finding supports the theoretical argument that TCs with greater authority to investigate human rights abuses, implement reconciliatory measures, and make policy recommendations are associated with a greater overall respect for physical integrity rights than their counterparts. Holding all else constant, for each additional dimension of authority awarded to a TC, that country’s latent physical integrity score is about 0.25 higher. With a range of −3.18 to 4.82, an increase of 0.25 for each dimension of authority is significant. Countries with the highest value or 3 on the dimensions of authority score would have a 0.75 higher latent physical integrity score than countries with TCs that have less or no authority. Countries with TCs that have maximum authority, compared to those with minimum authority, experience fewer human rights abuses. On average, these countries respect human rights at a rate about 30% higher than countries with TCs designated to investigate specific abuses only.

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Table 5.6  Ordered probit: amnesty (PTS) Variable Authority New regime Public hearings Report released Prosecutions State sponsored Population (logged) Polity 2 Polity 2 sq ∆ GDP N Log-likelihood χ2

β (s.e.) −0.252* (0.145) −0.779*** (0.261) 0.452** (0.228) −0.79 (0.169) 0.253 (0.284) −0.077 (0.212) 0.294** (0.123) −0.029 (0.048) −0.018** (0.007) −0.0002*** (0.000) 481 −552.868 90.90

Significance levels: *10%; **5%; ***1%

Transitional countries that are able to establish a TC with the authority necessary to carry out its tasks without too much oversight from the government should be better able to achieve legitimacy from the citizenry. Most importantly, this is because any institution deemed to be the investigative body of prior abuse(s) must maintain some level of independence and authority separate from that of the government in order to establish credibility. This credibility and independence creates governmental oversight which incentivizes good human rights practices. This examination is the first step in uncovering what TC independence and authority must look like in order to accomplish this necessary credibility and as a result contribute to an overall greater respect for human rights. Next, I argue that new regimes have an opportunity to start anew in the aftermath of mass abuse. They have an opportunity to shape the political climate by focusing on the future and establishing new norms of behavior. This opportunity warrants caution, however, and necessitates that the new regime practice fair and just governance. TCs created by new regimes should be associated with a greater respect for physical integrity rights compared to TCs created by the same regime that ruled during the conflict or authoritarian rule or those created by intuitions outside the state apparatus. The results support this hypothesis—the new regime variable is positive and significant. Countries where TCs are adopted by new regimes have, on average, a latent mean score that is 0.66 higher than other TC countries. Human rights abuses are less frequent in countries where new regimes investigate past abuses than in other TC countries.

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The variables used to separate transparent TCs from non-transparent TCs provide mixed results. Transparency is observed in two ways: by the holding of public hearings or the release of a report. The variable that indicates whether or not a public hearing was held achieves statistical significance, but in opposition with the proposed hypothesis. In other words, countries with TCs that hold public hearings exhibit less respect for human rights than countries with TCs that do not hold public hearings. Additionally, the release of a final report fails to achieve significance. While recent work by Taylor and Dukalskis (2012) finds these same characteristics increase the likelihood of democratization for TC states, they do not appear to have the same effect on respect for human rights. Perhaps it is the case that these public forums actually increase human rights violations initially, while over the longer term, they can increase respect for human rights. This logic would be consistent with other human rights literature which finds that the initial awareness of human rights violations exacerbates repression (Meernik et al. 2012), but inconsistent with what I argue here. Rather than increasing respect for human rights, public hearings may aggravate wounds that have not had a chance to heal. It may also be the case that this measure is too superficial—perhaps there is too wide a spectrum of differences among public hearings and reports to be well represented in this analysis. Whatever the case, these mixed findings necessitate further examination of this relationship by future scholarship. The control variables perform as expected with one key exception. While trials do not achieve statistical significance, the results are in the opposite direction anticipated. Once TC characteristics are considered, the effect of trials appears to be tempered if not eliminated. The most recent TJ scholarship posits that criminal prosecutions are one of the most effective mechanisms of TJ. Olsen et al. (2010) even suggest that without the accompaniment of prosecutions, TCs have little to no impact on the societies in which they exist. Instead they argue that trials complimented by amnesties or TCs are best. This finding suggests that these conclusions may be premature. The addition of trials appears to have no effect on TC countries’ human rights performance. This provides more evidence that not all TCs are alike and further that their differences need to be taken into account to fully understand when they have an impact on the countries in which they exist. Trials may actually do little to supplement TC processes when TCs are designed with characteristics that foster legitimacy. TC processes may actually sanction state behavior and create the momentum to change norms more effectively than trials. This makes sense if you consider that

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trials simply punish the worst offenders and are rarely able to prosecute all perpetrators. While they may punish particular leaders, they do little to sanction state behavior as a whole. TCs may be better equipped to address widespread abuses by admitting the limitations they face and focusing on moving beyond the past in a holistic rather than individualistic manner. Regardless, these results suggest that more research is necessary to understand the role that trials play when they accompany TCs. Given these results, the scholarship cannot assert that the impact of trials trumps that of TCs in all cases. Future research must explore this relationship in greater detail. As mentioned, other control variables behave as anticipated. Increases in population are associated with less respect for human rights, while more democratic and more developed countries are associated with greater respect for human rights. One more finding (or lack thereof) is important to note: the dummy variable indicating whether or not a TC is state sponsored does not achieve statistical significance—TCs that are sponsored by the state are not distinct from TCs that are not sponsored by the state in regard to human rights performance. For scholars this demonstrates that a wider array of TCs should be considered when assessing TC impact as I do here. For policy makers this suggests that a broader spectrum of TC processes be considered when determining the type of TC to adopt or recommend. International actors (e.g. NGOs) may be encouraged by this finding and decide to increasingly participate in TC processes.

5.6   Conclusion These results point to some important considerations for scholars and practitioners. Some of the most recent and best work on TJ challenges argues that TCs do not improve human rights (Wiebelhaus-Brahm 2010; Dancy et al. 2010; Olsen et al. 2010). I directly engage this conversation by calling attention to the differences that exist among TCs. My findings show that not all TCs are alike. I believe a failure to account for these differences has directly impacted the scholarship’s findings regarding TC impact. Specifically, I demonstrate that human rights practices are better in countries where TCs have greater authority and where new regimes establish the TC compared to those countries with TCs that lack these attributes. TCs that investigate human rights violations broadly are more likely than their counterparts—that instead investigate one or a specific set

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of abuse(s)—to contribute to improvements in human rights performance. In addition, TCs that are sponsored by a new regime rather than an existing regime or some third party are associated with better human rights performance. I also encounter a few results that are counterintuitive to my theoretical expectations. First, TCs that exercise transparency may not foster changes in norms that lead to improvements in human rights as theorized. This seems less alarming, though, when juxtaposed with other arguments in the human rights and TJ disciplines. First, openness in the transitional period is likely to be met with opposition (Meernik et al. 2012). Second, this may be one explanation for the mixed findings within the TJ literature regarding TCs. Scholars and practitioners alike have advocated for public hearings to be included in TC processes; and some TCs do hold public hearings (about 20%). Perhaps this suggests that there are short-term costs or even tradeoffs to truth-telling. Taylor and Dukalskis (2012) find strong support for their argument that “publicness” in TCs contributes positively to democratization. While public hearings may lead to improvements in civil liberties and democratic values in the long term, in the short term, they may simply reignite or agitate grievances and ignite political violence. Norms take time to change; perhaps the negative and mixed findings are representative of the growing pains that occur during this process. TCs take many forms; at a minimum this research necessitates that these distinctions no longer be ignored theoretically or empirically. In this chapter, I argue that TCs contribute to improvements in human rights when they achieve legitimacy. I find statistical support for the hypotheses regarding authority and new regimes, but not transparency. The more dimensions of authority a TC has, the more likely that government is to respect personal integrity rights. I argue this is because a TC requires independence to establish credibility and carry out its functions. When states award TCs independence, they signal a commitment to the process and agree to a mechanism by which they can be sanctioned, thereby incentivizing good behavior. Additionally, TCs created by a new regime respect personal integrity rights at a higher rate than TCs created by an existing regime or a third party (most often the UN). I argue this is because a new regime has the ability to shape the environment in the transitional period in a manner that an existing regime or third party cannot. As a result, they have an increased incentive to allow a fair TC process to unfold. This simultaneously discourages using the TC as a political tool and encourages practicing respect for human rights.

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These findings have implications for scholars and policy makers alike. At the very least, scholars should take from this that not all TCs are alike. In fact, they differ greatly and should not be conceptualized or measured as simply present or absent. Additionally, scholars should be interested to see that I find support for my argument that the decision to examine only state-sanctioned TCs is somewhat arbitrary. Finally, policy makers can take from this iteration of the research that key TC characteristics exist. Resources are limited in transitioning environments, making the identification of those traits that seem to be most effective an important endeavor. Authority and being created by a new regime are key characteristics in establishing TC legitimacy and improvements in human rights.

Notes 1. Even when experts discuss the potential drawbacks of a mandate that is overextended, they are unable to reach an agreement as to what that actually means (González and Varney 2013). Instead, they point out that most importantly, citizens’ perceptions of broad mandates do not reflect the fears of policy makers regarding corruption and lack of focus. Kenya’s informed civil society, for example, led to a broad mandate. 2. Taylor and Dukalskis (2012) refer to this as publicness. 3. http://databank.worldbank.org/ddp/home.do. 4. The primary dependent variable latent mean and its lag are correlated at 0.98.

References Cingranelli, David L., and David L. Richards. 2010. The Cingranelli and Richards (CIRI) Human Rights Data Project. Human Rights Quarterly 32 (2): 401–424. Conrad, Courtenay R., and Emily Hencken Ritter. 2013. The Conflicting Effects of International Law: Domestic Institutions, Repression, and Dissent. Dancy, Geoff, Hunjoon Kim, and Eric Wiebelhaus-Brahm. 2010. The Turn to Truth: Trends in Truth Commission Experimentation. Journal of Human Rights 9 (1): 45–64. Davenport, Christian. 1999. Human Rights and the Democratic Proposition. The Journal of Conflict Resolution 43: 92–116. Fariss, Christopher J. 2014. Respect for Human Rights Has Improved Over Time: Modeling the Changing Standard of Accountability. American Political Science Review 108: 1–22. Fearon, James D., and David D.  Laitin. 2003. Ethnicity, Insurgency, and Civil War. The American Political Science Review 97 (1): 75–90.

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Freeman, Mark. 2006. Truth Commissions and Procedural Fairness. Cambridge: Cambridge University Press. Freeman, Mark, and Priscilla B.  Hayner. 2003. Truth-Telling. Stockholm: International Institute for Democracy and Electoral Assistance. Gibson, James L. 2004. Overcoming Apartheid: Can Truth Reconcile a Divided Nation. New York: Russell Sage Foundation. González, Eduardo, and Howard Varney, eds. 2013. Truth Seeking: Elements of Creating an Effective Truth Commission. Brasilia: Amnesty Commission of the Ministry of Justice of Brazil; New York: International Center for Transitional Justice. Hafner-Burton, Emilie M. 2005. Trading Human Rights: How Preferential Trade Agreements Influence Government Repression. International Organization 59 (03): 593–629. ———. 2008. Sticks and Stones: Naming and Shaming the Human Rights Enforcement Problem. International Organization 62 (Fall): 689–716. ———. 2013. Forced to Be Good: Why Trade Agreements Boost Human Rights. Ithaca: Cornell University Press. Hayner, P.B. 1994. Fifteen Truth Commissions-1974 to 1994: A Comparative Study. Human Rights Quarterly 16: 597. ———. 2010. Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions. Didcot: Taylor & Francis. Keck, Margaret E., and Kathryn Sikkink. 1998. Activists Beyond Borders: Advocacy Networks in International Politics. Ithaca, New York: Cornell University Press. Kim, Hunjoon, and Kathryn Sikkink. 2007. Do Human Rights Trials Make a Difference. Annual Meeting of the American Political Science Association. ———. 2010. Explaining the Deterrence Effect of Human Rights Prosecutions for Transitional Countries1. International Studies Quarterly 54 (4): 939–963. Lebovic, James H., and Erik Voeten. 2009. The Cost of Shame: International Organizations and Foreign Aid in the Punishing of Human Rights Violators. Journal of Peace Research 46 (1): 79–97. Marshall, Monty G., and Keith Jaggers. 2002. POLITY IV Project: Political Regime Characteristics and Transitions, 1800–2002. www.cidcm.umd.edu/ inscr/polity. Meernik, James, Rosa Aloisi, Marsha Sowell, and Angela Nichols. 2012. The Impact of Human Rights Organizations on Naming and Shaming Campaigns. Journal of Conflict Resolution 56 (2): 233–256. Neumayer, Eric. 2005. Do International Human Rights Treaties Improve Respect for Human Rights? Journal of Conflict Resolution 49 (6): 925–953. Olsen, T.D., L.A. Payne, and A.G. Reiter. 2010. Transitional Justice in Balance: Comparing Processes, Weighing Efficacy. Washington, DC: US Institute of Peace.

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Payne, Leigh A. 2007. Unsettling Accounts: Neither Truth Nor Reconciliation in Confessions of State Violence. Durham, NC: Duke University Press. Poe, Steven C., and C. Neal Tate. 1994. Repression of Human Rights to Personal Integrity in the 1980s: A Global Analysis. American Political Science Review 88: 853–872. Poe, Steven C., C.  Neal Tate, and Linda Camp Keith. 1999. Repression of the Human Right to Personal Integrity Revisited: A Global Cross-National Study Covering the Years 1976–1993. International Studies Quarterly 43: 291–313. Richards, David L., Ronald D. Gelleny, and David H. Sacko. 2001. Money with a Mean Streak? Foreign Economic Penetration and Government Respect for Human Rights in Developing Countries. International Studies Quarterly 45: 219–239. Taylor, L.K., and A. Dukalskis. 2012. Old Truths and New Politics Does Truth Commission Publicness Impact Democratization? Journal of Peace Research 49 (5): 671–684. Wiebelhaus-Brahm, E. 2010. Truth Commissions and Transitional Societies: The Impact on Human Rights and Democracy. Didcot: Taylor and Francis. Wood, Reed M., and Mark P. Gibney. 2010. The Political Terror Scale (PTS): A Re- introduction and Comparison to the CIRI Human Rights Database. Human Rights Quarterly 32 (2): 367–400.

CHAPTER 6

Truth Commission Legitimacy and Violence in Africa

Abstract  In an attempt to gain a more nuanced understanding of truth commission impact on violence within a society, I devote Chap. 5 to testing the argued relationships using the SCAD—information on protests, riots, strikes, and other similar social disturbances in Africa between 1990 and 2011. I find that the authority awarded to a truth commission by its mandate decreases the total number of SCAD events that occur in a particular country by about 11%. Additionally, public hearings perform counter to my expectations. Based on my statistical analysis, public hearings (transparency) increase violence by a little less than 6% compared to truth commission countries that do not hold public hearings. This chapter further discusses these and other results in greater depth. Keywords  Truth commission • Africa • Legitimacy • Political violence • Social conflict In the previous chapter, I discuss how truth commission (TC) legitimacy characteristics shape state behavior regarding respect for human rights. I now turn to a discussion of how these same characteristics shape citizen behavior. My argument surrounding the ability of TCs to impact society rests on a TC’s ability to achieve legitimacy. When legitimate, TCs have an opportunity to signal to society that the past will be addressed and future abuses will not be tolerated. In other words, creating a legitimate TC is an © The Author(s) 2019 A. D. Nichols, Impact, Legitimacy, and Limitations of Truth Commissions, Human Rights Interventions, https://doi.org/10.1007/978-3-030-11172-4_6

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informal commitment to peace and stability. I argue that this commitment and the signals sent shape behavior and change norms. I further argue that as a result, citizens are more likely to trust TCs to carry out their tasks, primarily to address the past, and less inclined to participate in social or political violence. I remind the reader that I assume TCs are political tools and as such are created with a variety of intentions, and that those TCs created with legitimacy characteristics are most likely to spur beneficial outcomes. TCs may be important catalysts for changing norms following a period of conflict or authoritarian rule by representing a shift away from abuses and a move toward a more peaceful future. When citizens are able to entrust the TC as an institution that will deal with the past (including elites) and not simply create a smokescreen for the government’s abuses, they are less likely to resort to violence themselves. This is because they are less fearful of being on the receiving end of violence and feel more hopeful about the future. I argue TCs may create a temporary political and social space in the initial phase of the transition period in which concerns about the past can be addressed through institutions rather than violence. In the remainder of this chapter, I discuss why each of the legitimacy characteristics may shape citizen behavior. I then conduct statistical analysis on all African states that have adopted TCs to test my arguments. Finally, I discuss my results, the implications that follow, and next steps for my own and other transitional justice (TJ) scholars’ work.

6.1   Authority When TCs are awarded independence or the authority necessary to carry out their processes, they are more likely to send signals to society that spur norm change. Narrow mandates, on the other hand, only experience weak legitimacy as citizens suspect that the narrowness is an indicator of the government’s attempt to cover up its actions. Citizens may perceive restricted mandates as political tools of those in power. A TC’s mandate, then, must at least award the TC authority to investigate human rights abuses. When awarded authority TCs send a strong signal to both the citizenry and the government that the commission is independent, impartial, and concerned with moving the country forward. As I demonstrated in the last chapter, when a TC has authority it can restrict government behavior. As an institution with independence from the government, TCs with authority cannot simply be manipulated by the government for its own gain. Instead, they can identify important information

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about the past in an attempt to change the future. This ability on the TC’s part to investigate and identify abuses discourages the government from engaging in future abuses. In other words, it raises the social and political costs associated with repression. This, in turn, incentivizes peaceful behavior by the citizenry. This is because when citizens trust that the country is moving beyond a period of abuse, they feel safer and focus their attention on other matters. In other words, signaling a commitment to peace and oversight by establishing an independent TC the government encourages peace within the citizenry. In transitional states, uncertainty is high and institutions are often either not fully established or strained from the prior period of abuse. This combined with a fear of a return to the abuses of the past leads to a lack of trust among the citizenry. If TCs can signal that they are independent and carry out their functions, they may detract from some of this uncertainty in the short term while providing evidence or good reason to believe that more independent institutions are likely to exist in the long term. When other mechanisms by which citizens can exercise their voice are lacking, independent TCs may provide a temporary body where citizens feel represented and, in addition, signal that more institutions will be created that reflect this representation. Citizens are less likely to seek retribution for past abuses when they believe an independent TJ process is being carried out. Instead, they will focus on moving forward and rebuilding their own lives. Stated another way, TCs with authority generate momentum for stability that citizens can believe in at the societal level. This logic leads to the following hypothesis: Hypothesis 1 Citizens in countries that adopt truth commissions with authority commit fewer acts of social and political violence than citizens in countries that adopt truth commissions that lack authority.

6.2   New Regime Next, I suggest that TCs adopted by new regimes—compared to those adopted by existing regimes or third parties—are more likely to be legitimate which enables them to contribute to decreases in violence. In the transitional environment, new regimes have the privilege of a fresh start. This is important for a few reasons. First, this creates an incentive for the government to practice fair behavior as citizens will look to the ­government for cues about the new political environment. If a new regime adopts a

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TC, it signals a commitment to abandon the abuses of the past and to exercise fairness. A TC established by a new regime is likely to be perceived as more trustworthy than a regime that perpetrated or turned a blind eye to violence. Next, as a result of this signal, citizens are less likely to engage in violence themselves, hoping that the fresh start creates a new social contract in which violence is discouraged and unnecessary. In other words, when new regimes establish TCs, they suggest to the broader population that they are willing to create and use the institutions necessary for addressing political issues rather than relying upon violence. This shapes citizens’ behavior by making them more trusting of institutions and less apt to resort to violence themselves. Repression spurs dissent; when citizens fear the use of repression, they are more likely to rely upon violence to renegotiate the status quo. Conversely, if the government signals a shift away from a cycle of abuse, the citizenry is likely to follow suite. Instead of taking matters into their own hands and resorting to violence, citizens  are  likely to address their grievances through the appropriate institutional processes. This reasoning leads to my next hypothesis: Hypothesis 2  Citizens in countries with truth commissions created by new regimes commit fewer acts of social and political violence than citizens in countries where truth commissions are adopted by the existing regime or third parties.

6.3   Transparency Transparency is the next characteristic that I argue awards a TC legitimacy and thus shapes state and citizen behavior. I remind the reader that by transparency I mean TC processes that generate the free flow of information regarding the commissions’ efforts. When TCs actively engage their citizens, they are more likely to have an impact on them. Put another way, if citizens are unaware that the TC exists or have little idea as to what its functions are, it is less likely to have an impact. Transparency may signal that oversight is the new norm. This is essential in transitional periods marked by security dilemmas. Aside from revealing important details about the past, TC transparency generates momentum for new norms associated with public discourse. When TCs hold public hearings, they provide a process that citizens can participate in and as a result deal with the turmoil they may be experiencing following conflict or a period of mass abuse. This gives citizens an institutional process through which their grievances can be heard, while at

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the same time fostering the norm of nonviolence. Public hearings are usually held throughout the TC process making them an important connection between the commission and the public. They provide insight into the broader population regarding the TC’s functions while also providing an opportunity for participation. I argued in the previous chapter that transparency signals a commitment by the state that it will behave. Again, when the state signals norm shifts in their own behavior, citizens are more likely to pursue political channels for dealing with their concerns and grievances which leads to less political and social violence. Next, some but not all TCs release a final report. Where public hearings occur throughout the TC process, final reports are released at the conclusion of the TC’s investigation. Releasing the final report is essential to legitimacy as it provides a summary of the investigations, findings, and recommendations of the TC.  When there is transparency in these processes, the citizenry is less likely to be suspect of the commission. Dissemination of information removes fears and suspicions about TC behavior which further legitimizes its functions. Even when individuals or groups may not agree with particular aspects of the final report, releasing the report is more effective at achieving legitimacy than withholding it would be. Often times final reports reveal information concerning prior abuses which gives voice to victims. Increasingly, states will even put a residual force in place for some time after the TC completes its processes in order to handle any issues that arise. The SATRC, for example, still maintains a website with information for victims.1 This recognition or acknowledgment of abuses committed is important for helping citizens move forward in a peaceful manner. On the other hand, absent acknowledgment citizens may be generally less satisfied with the status quo and more likely to pursue vindication. Thus, the release of a final report should discourage the use of political violence by the citizenry by contributing to a transparent TC process. This logic leads to my final hypothesis: Hypothesis 3  Citizens in countries that adopt transparent truth commissions commit fewer acts of social and political violence than citizens in countries that adopt truth commissions that lack transparency.

6.4   Research Design Dependent Variable A key goal of all TJ mechanisms is to contribute to peace and stability in the societies where they exist. Peace and stability are observed in a variety

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.05

Frequency

.1

.15

of manners: the absence of war, a move toward democracy, a decrease in state repression, or an increase in respect for human rights. Other measures exist, however, that capture a more fine-grained assessment of peace and stability. In an attempt to capture a more nuanced relationship between institutions of TJ and peace and stability, I use the SCAD. SCAD is a dataset that counts instances of social unrest and political violence (Salehyan et al. 2012).2 These events of social unrest include protests, riots, strikes, violent repression, and other violent events that do not meet the conventional civil conflict thresholds. I aggregate this event data and sum the total number of violent events in a particular country-year. This variable ranges from 0 to 57 with a mean of 7 and a standard deviation of 10. The standard deviation is larger than the mean, indicating that this data is overdispersed. Figure 6.1 provides a histogram of this variable. SCAD is available for countries that have a population over 1 million in Northern Africa and Sub-Saharan Africa from 1990 to 2010, limiting my spatial and temporal observations to those parameters. A large number of transitions have taken place in Africa in the recent past, making it a good

0

Fig. 6.1  Violent SCAD events

20 40 Violent SCAD Events

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starting point for this analysis. Additionally, many if not most of the TCs created in the last 20 years have been established in Africa. This is no doubt partly a result of the number of conflicts and transitions that have taken place in the region, but also arguably a result of the upsurge in the establishment of TCs following the formation and acclaimed success of the SATRC in the early 1990s. Independent Variables The independent variables I employ are the same as those used in the previous chapter and are introduced in Chap. 3. I briefly review them here as a reminder. Authority is determined by adding a series of dummy variables together to indicate whether or not a TC’s mandate awarded it the authority to carry out certain tasks, including whether or not it investigated human rights violations broadly, engaged in reconciliatory processes, or made policy recommendations. I use a dummy variable that indicates whether or not the TC was created by a new regime. Finally, I use two dummy variables to represent transparency: one that indicates whether or not public hearings were held, and one that indicates whether or not a final report was released. I control for several variables that existing literature has shown have an impact on the occurrence of social unrest and political violence (Hendrix and Salehyan 2012). First, I control for prior incidences of SCAD events using a lagged total violent event variable. Unfortunately, the greatest indicator of future violence is past violence. As democracies experience less violence than non-democracies, I control for regime type using polity 2 and polity 2 square. Next, I control for economic growth in a country using the change in GDP per capita in a given year as the relationship between economic development and conflict is negative and robust (Collier and Hoeffler 2004). Further, I control for population, as larger populations are more likely to experience social unrest (Fearon and Laitin 2003). Economic and population data is taken from the World Bank Development Indicators. Finally, I include a dummy variable to control for the effect of prosecutions. I rely on Kim and Sikkink (2007) for this measure as their criteria are more inclusive than most.3 Model Specification To test my hypotheses, I rely on a panel of 13 African countries from 1990 to 2010. My dependent variable, SCAD events, is a count variable, and as mentioned above an inspection of simple histograms confirms that the data

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is not normally distributed, but instead is overdispersed. Either a Poisson or a negative binomial distribution is typically used when analyzing count data that, like this, is not normally distributed. If the assumption can be made that the probability of any given event is independent of any other event for a certain period of time, a Poisson regression model would be appropriate (King 1989). The nature of my dependent variable, however, is such that this assumption cannot be made. The opposite is actually true—prior SCAD events are a good if not the best predictor of future SCAD events, making a negative binomial distribution most appropriate for this analysis. My data is pooled cross-sectional time series (PCSTS), which tend to suffer from both heteroskedasticity and autocorrelation (Beck and Katz 1995). To address these issues, I report robust standard errors clustered by country. I also control for selection, as not all countries are equally likely to adopt or implement mechanisms of TJ.  Certain characteristics—regime type, population, economic growth, and civil war—have been shown to have some bearing on when and where these mechanisms are adopted (Olsen et al. 2010). Additionally, I control for time and a prior TC. I first estimate a probit model that accounts for these effects and calculate the inverse mills ratio, which is then included in the negative binomial model used to test my theory. The selection stage is modeled using all countries in Africa and the discussed variables to predict TC onset. Although the variables chosen are not arbitrary, the results are not very strong. The only variable that achieved significance is population. This suggests that further research is necessary to fully understand why some transitional countries adopt TCs and others do not. While I do not examine the origin or onset of TCs at this time, examining these processes is part of my larger research agenda. Nonetheless, I control for selection to the best of my ability at this time.

6.5   Results I report both the coefficient estimates and the incidence rate ratios (IRR) for the negative binomial results in Table  6.1. Table  6.2 provides the results of the selection stage that was used to calculate the inverse mills ratio, which is not significant in the second stage. To interpret the coefficients I follow convention: holding all other variables constant, for a one unit change in a particular independent variable, the difference in the logs of expected counts of the dependent variable is expected to change by the respective regression coefficient. The IRRs indicate the percentage change

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Table 6.1  Negative binomial regression for violent SCAD events Variable Violent events lag Authority New regime Public hearings Report released Trials log(Population) Polity 2 Polity 2 sq ∆GDPpc Inverse mills Intercept n

Coefficient (s.e.)

IRR (s.e.)

0.072 (0.025)*** −0.787 (0.247)*** −0.092 (0.327) −0.837 (0.265)*** −0.167 (0.307) −0.301 (0.269) 0.029 (0.310) 0.049 (0.042) 0.020 (0.007)*** −0.0002 (0.000) −0.110 (0.112) 1.625 (4.660) 179

1.075 (0.028) 0.455 (0.112)*** 0.912 (0.298) 0.433 (0.115)*** 0.846 (0.260) 0.740 (0.199) 1.030 (0.320) 1.050 (0.044) 1.050 (0.007)*** 1.0002 (0.000) 0.895 (0.100) 5.078 (23.664)

p