By Patrick J. Pierce
Mizzima News (www.mizzima.com)
January 6, 2004

Road maps for transition in Burma are proliferating, even as the political situation deteriorates further and actual prospects for a genuine transition to democracy grow dimmer. A transition that leads to genuine reconciliation must include all sectors of society in Burma in the development of the process of transition, not just as seat-fillers at a national convention. Long-term plans for moving toward democracy could help show the way toward reconciliation. Transitional Justice – how to deal with the legacy of massive human rights abuses – should be an early directional sign on that road.

"Transitional Justice" is fairly new in the lexicon of social science, politics, and international relations. The field deals with the societal and political changes that happen after war or when an authoritarian regime falls and is replaced by a new (presumably better) democratic government. In particular, it deals with what happens in response to past human rights abuses – what to do about the perpetrators as well as the victims and survivors.

The term came into common usage only recently, but post-World War II Nazi trials at Nuremberg and the reparations to survivors and families of victims of the Holocaust fall within the purview of Transitional Justice. A more recent example is the South African Truth and Reconciliation Commission (TRC). The TRC served as a mechanism for victims of apartheid to learn the truth about the abuses they or their loved ones suffered and gave perpetrators an opportunity to apply for amnesty in exchange for the full truth about their crimes. Over the past twenty years, people in countries as disparate as Ghana, East Timor, Bosnia, Guatemala, and Chile have created such mechanisms – everything from South African-style truth commissions, to criminal tribunals (e.g. the trial of former Serbian President Slobodan Milosevic at The Hague), to commemorative ceremonies and museums about the abuses suffered under authoritarian rule. Transitional Justice moves beyond knowledge of what was suffered (which the victims are already well aware of) to acknowledgement – whether by the government or society at large – of that suffering. Other societies in transition have used different mechanisms – investigations, prosecutions, civil sanctions, reparations, and commemorations – in various combinations to reveal the distinction between knowledge to acknowledgement. [See "Transitional Justice Mechanisms," below.]

The global historical trend of Transitional Justice is away from impunity and toward accountability. South Africa's TRC, Slobodan Milosevic’s trial at The Hague, the establishment of the International Criminal Court, and the coming Khmer Rouge trials in Cambodia are but four examples. In addition, numerous lessons can be drawn from societies that did not address the human rights abuses of the past, or did so in a limited way. In Argentina, some of the mothers of the disappeared still suffer the pain of not knowing what happened to their children. In Brazil, perpetrators of past abuses still maintain their positions on the police force and continue abusing the population with impunity.

Other societies' experiences can convey important Transitional Justice lessons, but only if those lessons are considered within the unique context of Burma. One essential aspect of that context that does not enter the public discussion about this issue is, what do the people in Burma who have suffered human rights abuses want to happen regarding perpetrators and those affected by human rights abuses?

Imagine a village in Shan State in a future democratic Burma. A rape survivor goes shopping in the village market and sees, at the next stall, the soldier who raped her. How will she respond? Will she have any legal recourse for achieving justice? Will the soldier be ashamed or will he harass her? Will he continue to rape with impunity? Will she seek revenge, or "street-justice," if the state does not act? Will she get medical care to help her recover? What are the implications of such a scenario for national and community reconciliation?

Transitional Justice is a delicate topic among the pro-democracy movement, as there is a common misperception that equates justice with revenge. Following the National League for Democracy's (NLD) 1990 election landslide victory, NLD leader U Kyi Maung told a foreign journalist that Nuremberg-style trials could not be ruled out for the military leaders. General Khin Nyunt confronted U Kyi Maung publicly about this statement. Many observers point to this incident as a major indication of the military regime's fears in turning over power to the NLD. The generals are worried about being held accountable for the violence they have imposed on the population throughout Burma and will never agree to give up power if they fear retribution by the people.

Political actors and even many victims may see a forgive-and-forget approach as the only viable option for dealing with past human rights abuses. In this scenario, the Shan villager would have to turn away and try to pretend that the rape never happened. Others may believe that the legitimacy of any transitional or democratic government depends on the victims seeing the military leaders punished. In this case, the SPDC leaders would stand accused of ordering or condoning rape and would face the Shan villager at a criminal tribunal. The forgive-and-forget scenario denies the dignity of the rape survivor and so is unacceptable. The trial scenario does not seem realistic given the current political situation. A truly sustainable settlement of the political crisis in Burma cannot be reached through amnesia, but justice may have to be gained in creative ways.

The field of Transitional Justice entails much more than tribunals. A more thorough understanding of options such as civil sanctions and reparations could lead to creative new initiatives. Political actors can consider more nuanced approaches to dealing with Burma's past, and broad awareness of Transitional Justice could actually help push a potential dialogue forward. Whether a transition takes months or years or decades, preparation – through investigations and exposure to other societies' experiences – is a complex, on-going process that can begin now. Not being prepared could result in innumerable lost opportunities to create a more just, democratic society.

One important lesson learned from other societies that have experienced a transition to democracy is that different parts of society (e.g. rural and urban, male and female) experience human rights abuses differently, and therefore have varying ideas for how justice should be obtained. For example, a male student political prisoner who suffered torture and fled to Thailand may have very different ideas of justice than a female Karenni villager who has been displaced from her land, endured forced labor, and had a relative killed by the military. One may insist on financial reparations, the other on prosecutions. The complexity of the situation in Burma demands a thorough inquiry into how communities in Burma have suffered and what ideas they have about justice and reconciliation.

In order for a society to deal with such diversity on a policy level, a free and independent press should be the first guarantee in the transitional process. Policy makers should not only tolerate an airing of such issues, they should encourage broad discussion if they want to truly take advantage of an opportunity to make a break from the repressive past to build a democratic future. The complex task of creating a policy with broad input is difficult even in the most democratic of societies, impossible under a repressive regime. For this reason, Transitional Justice policies in Burma should not be decided upon behind closed doors in negotiations among political elite. When Burma does begin a political transition, freedoms of speech and press could help facilitate a nationwide discussion on how to create a new Burma, and the agenda for this discussion should include Transitional Justice.

Where would such a national dialogue lead? The democratic process is unpredictable and hard to control, but it also allows for new ideas and creative initiative. Any transitional justice policy needs to take into account the diversity of Burma, the diversity of the suffering but also the related variance in ideas about justice, peace, and reconciliation. Ultimately, the people of Burma have the right to have the truth of their suffering known and acknowledged on a broad, societal scale.

Transitional Justice options can be tools for reconciliation rather than vengeance. The people of Burma have suffered much, and it flows logically that revenge or retribution may be unleashed when the people break free of their oppression. But such analysis does not give the people enough credit for also wanting to look to the future, to create a better society. On a personal level, the people who have suffered may want to see the perpetrators suffer. But people are also capable of weighing the political costs. If given the option of forgoing revenge in order for the military to hand over power, many would choose to compromise.

In addition, it is questionable whether the military regime in Burma is sincerely interested in transferring power. Daw Aung San Suu Kyi has insisted that no pre-conditions be set before a dialogue begins, and this policy should also apply to the Transitional Justice options that will need to be addressed in any negotiations. The SPDC could demonstrate its sincerity by not setting conditions on a potential dialogue. The time to compromise on issues of Transitional Justice is not now, in the pre-negotiation stage, but rather when the nature of the transition has been established and the process has already been set in motion. To be truly representative, the opposition leaders should bring to the negotiating table their constituents' legitimate desire for justice

The people have a right to a say in decisions about policies that affect them, and exposure to various options and comparative cases by a broad sector of society combined with a process for gaining input from those sectors should be a top priority in any transition. In the long run, an inclusive process will lead to a more sustainable and resilient democratic society.

Transitional Justice Mechanisms

Investigations form the basis for all other transitional justice mechanisms by establishing an accurate historical record – the truth – about what happened in the past. Investigations take many forms. A truth commission, a forum providing victims and perpetrators the opportunity to give public or private testimony about the past, is one form of investigation. In addition, the search for missing people and the exhumation of bodies from mass graves also constitute investigations. Many countries have also relied on the previous government's own files – e.g. court records from political trials and military intelligence documents on suspected dissidents – to learn the truth about the past.

Prosecutions consist of legal proceedings or trials to mete out punishment for past abuses. Some countries have used domestic courts, as in Argentina. Others have relied on international tribunals, such as the trials of the Nazis at Nuremberg after World War II and the international criminal tribunals for the former Yugoslavia (located at The Hague) and Rwanda (located at Arusha, Tanzania). Often, investigations are tied to potential trials. Conditional amnesty can be granted to a perpetrator. The conditions vary in different countries, but, for example, a perpetrator may only be granted amnesty if s/he provides full disclosure about past human rights violations and if those violations were not extreme in nature. If these conditions are not met, the perpetrator may be prosecuted.

Civil Sanctions are steps to restrict the role former perpetrators' may have in society, such as purging the military and barring perpetrators from public office or government work. Through such acts, a society may guard against continued abuses, but without the threat of incarceration for the perpetrator. Civil sanctions are usually used to deal with a high number of perpetrators, and they usually are implemented with a lower standard of due process than prosecutions.

Reparations are efforts to provide material compensation to victims of human rights abuses, usually in the form of money, but also material, medical, or educational benefits. The economic impact of human rights abuses can often affect a person's basic survival. For example, if a household's breadwinner has been killed extrajudiciously, his wife and children may suffer horrible economic consequences, and financial compensation may be used to ease that burden. Also, a family whose house was burnt down in an attack may have that house rebuilt. Reparations are intended to repair the past damage, to improve a person's lot in a material way.

Commemorations are sometimes called "symbolic reparations" – the idea is that there should be some public reminder of the past abuses in the hope that by remembering the past, future abuses can be averted. Commemorations also help establish a collective understanding of the victims' identities as victims or survivors – people who suffered unjustly – rather than insurgents or enemies of the state as they may have been cast by the previous non-democratic regime. Effective commemorations also draw attention to the legacy of the past abuses and call on the public to guard against a recurrence of authoritarian rule.

(The Author, Patrick J. Pierce, from Human Rights Education Institute of Burma, Transitional Justice Program, contributed this article to Mizzima News.)