In 2004, a generations-old subnational conflict re-erupted in the Deep South of Thailand. With almost 7,000 people killed in the past decade, in a region that is home to less than 3% of Thailand’s population, the conflict is currently the most deadly in Southeast Asia. What role might transitional justice play in helping nudge the South towards peace? Answering that question requires understanding what transitional justice is, how it has worked elsewhere, and how it fits with the current context in Thailand’s South.
WHAT IS TRANSITIONAL JUSTICE?
Transitional justice (TJ) is a set of temporary mechanisms that aim to help states and societies respond to widespread human rights violations after periods of conflict or dictatorship. Employed from the 1980s as countries in Latin America, East Asia and Eastern Europe democratized in the third wave of democratic transitions, which saw the number of democracies worldwide double between 1974 and 1990, the approach has increasingly been used as a peacebuilding tool following the end of civil wars. TJ aims to provide responses to the widespread abuses that often occur during one-party rule or the fog of war, in-so-doing building people’s trust in the state and each other. Indeed, TJ has become a cornerstone of the international ‘post-conflict’ toolkit, with groups such as the International Center for Transitional Justice established to advocate for TJ and advise on its implementation. In Asia, peace settlements in the Bangsamoro (Philippines), Aceh (Indonesia), Nepal and Timor-Leste have all included TJ provisions.
TJ approaches are built on the assumption that a lack of justice is a root cause of conflict and instability and that countries and regions must respond to injustices if peace is to consolidate. TJ has focused on boosting access to three forms of justice:
- Retributive justice: bringing those who committed abuses in the past to justice
- Restorative justice: compensating those who suffered loss from abuses
- Procedural justice: fixing judicial and security systems to ensure such injustices cannot occur in the future
To achieve this, four main types of TJ mechanism have been used.
First, prosecutions have been the main means to ensure retributive justice. Sometimes this has involved the establishment of international tribunals. In 2002 the International Criminal Court (ICC) was created under the Rome Statute to try perpetrators of crimes against humanity and war crimes. Ad-hoc, time- and territory-bound tribunals were set up for the former Yugoslavia and Rwanda. In other cases—such as Sierra Leone, East Timor, Bosnia and Herzegovina, Lebanon, and Cambodia—hybrid tribunals, combining domestic and international strategies and personnel, were put in place. Elsewhere, domestic legal systems have been used to try past abuses in Argentina and Chile, as well as those of past leaders such as Saddam Hussein in Iraq and Hosni Mubarak in Egypt
Second, truth-seeking processes have sought to establish facts about what happened and to generate a common narrative that helps people move on. Most commonly, truth and reconciliation commissions (TRCs) have been created by states to map and investigate past crimes and make policy recommendations on responses. The most famous of these is South Africa’s post-apartheid TRC but commissions had previously been established in other countries such as Argentina. More recent post-conflict TRCs have included those in El Salvador and Guatemala, Liberia and Sierra Leone, Sri Lanka and the Philippines. Most have been time bound, usually given six months to two years to conduct their work, and have adopted formal rules of investigation.
Third, reparations have promoted restorative justice. Typically this has involved the provision of cash to victims of abuses, or their families, sometimes accompanied by symbolic responses such as official apologies. Such programs have been formally included in 8 peace agreements since 1989 but, in practice, compensation and assistance to victims has been near-ubiquitous after peace settlements. Reparations have a strong basis in international law. In 2001, the International Law Commission ruled that any state that breached its international obligations, by omission or commission, must produce reparations to those affected. Article 75 of the Rome Statute likewise declared that perpetrators of crimes against humanity must repair the harm to their victims they caused.
Finally, TJ programs have increasingly emphasized longer-term institution-building aimed at promoting procedural justice. If human rights abuses and violent conflict are symptoms of institutional dysfunctionality, then efforts need to be made to transform those institutions. Such works aims to build a platform for moving beyond the transitional so that state bodies—in particular in the security and justice sectors—do their job properly. Following from an increasing international emphasis on state building, the World Bank’s influential World Development Report of 2010 emphasized the importance of institutional reform and work by The Asia Foundation has shown the importance of this in responding to subnational conflicts.
WHY MIGHT TRANSITIONAL JUSTICE HELP BUILD PEACE?
TJ could support peace through three main causal channels (Figure 1).
Figure 1. How TJ might support peace?
First, TJ is seen as promoting peace by providing redress to the local grievances that underpin conflicts. The presence of widespread grievances such as inequitable wealth distribution, and lack of political or cultural representation, can make areas vulnerable to rebellion. Harsh counter-insurgent tactics by the state can create fresh grievances. Dealing with these, it is argued, is necessary if peace is to be reestablished and stick.
Second, TJ is seen as having the potential to help rebuild state legitimacy. Conflicts often emerge because the state is not seen as legitimate and state responses to uprisings can compound this. Peace requires the establishment of a new social contract defining relations between those who govern and the governed. TJ, by demonstrating state commitment to reform, may help build this legitimacy.
Finally, TJ may be an important confidence-building measure that helps bind belligerent parties into peace talks. One reason for the failure of many peace agreements is the security dilemma, where parties do not fully commit to peace and rearm because they do not trust that the other side is serious about peace.
IS TRANSITIONAL JUSTICE SUITABLE FOR THE DEEP SOUTH?
Unfortunately there is relatively little evidence to date on whether and how TJ is effective in building peace. However, international experience shows that at least three conditions are necessary if TJ is to play a helpful role in moving countries and regions along the war-to-peace transition. None of these conditions is currently in place in southern Thailand.
Political will. TJ mechanisms only work when they are backed by strong political will. Prosecuting past crimes requires governments to agree that some of their own will face time behind bars. It involves admitting culpability, something that states, and particularly security forces, usually find extremely difficult. Launching TRCs, and even more following their recommendations, also creates vulnerabilities for state personnel. And pursuing longer-run institutional reforms can also be extremely difficult given political-economic incentives to keep the status quo. Without strong political will and leadership, TJ is likely to be confined to the provision of reparations, watered-down fact-finding missions (if at all) and the prosecution of small fry.
Lack of political will has been apparent in Thailand’s approach to TJ in the recent past. Pressure from ASEAN neighbors and from members of the King’s Privy Council to deal with escalating violence in the South led former Prime Minister Thaksin Shinawatra to create a high-level National Reconciliation Commission (NRC) in early 2005. The commission was tasked with investigating the causes of the violence and spent around a year on its task. Yet the final report made little impact on national policy with most of its recommendations ignored. A NRC fund was established to compensate victims, around 5,000 baht per family, but these were one-off payments and no systematic reparations system was established. No senior security personnel were brought to trial. From 2004 to 2012, twelve further case-specific fact-finding committees were established. But none of these had any real impact on the Thai government’s strategy on the southern conflict.
Lack of ongoing abuses. Where TRC mechanisms are put in place, they are only likely to be effective if and when they are accompanied by policies that limit the production of new grievances. This is extremely difficult, perhaps impossible, during times of conflict. Counter-insurgency, even when executed well, inevitably heightens perceptions of victimhood amongst many in the local population. This is one reason why TJ initiatives, with the exception of reparations and some efforts at institutional reform, are almost never successful when conflict is raging.
With conflict in the Deep South continuing, it is hard to see how TJ initiatives will change the views of many of the local population towards the state or build trust among insurgent leaders in government intentions. The state policy of providing reparations to victims, with a whopping 7.5 million baht now given per victim, is seen by many as a mere attempt to coopt dissidents. The renewed security approach of the government since the May 2014 coup, which has seen troop numbers increase sharply and many new militia recruited, may have been effective in limiting the number of incidents of violence, which have recently declined. But they provide little room for any benefits from TJ approaches.
Elite deals. A third lesson is that TJ approaches only work well if they are implemented in concert with other strategies that forge an elite deal or political settlement. International experience shows that even if initial grievances are addressed, violence will not ebb unless those who control the means of violence on both sides board the peace train.
At present, it appears that any such elite agreement between government and military leaders and insurgents is far off. Peace talks in early 2013 stalled amid claims that the government was not serious about pursuing reforms nor the insurgents about watering down demands for full independence. In recent weeks, a negotiation team has been formed on the government side but few see fresh talks as imminent or, if and when they occur, of any agreement being reached in the near term.
Indeed, steps that are necessary to bring the insurgents to the table may run counter to the goals of TJ. In particular, a major obstacle has been the refusal of the Thai state to provide amnesty to insurgent leaders. Such legal reassurances may be needed if senior insurgents are to participate in open talks. But TJ aims to fight the impunity that such an amnesty accord would imply. It may be that there is a need to delay key TJ activities such as prosecutions and truth-seeking until after any peace agreement is reached.
SO WHAT SHOULD BE DONE?
Does this mean that TJ is not suitable for Thailand’s Deep South? The answer is both yes and no. Most TJ initiatives are likely to be ineffective while an elite peace deal has not been reached, political will is lacking and military offensives continue. But important preparatory work can be undertaken now that could prove useful later.
This should include the following:
First, research can be undertaken on the extent and ways in which Thailand’s legal framework allows for future implementation of TJ activities. What provisions exist in law for retroactive prosecutions? Under what conditions can amnesty be provided?
Second, it is worth thinking through what elements of international experience with TJ fit with the Deep South context. Approaches to TJ have been differed massively between countries and over time. Exposing those working on the South to other contexts can be useful. Understanding the demands and needs of those who have suffered from abuses is also important.
Third, there is a need to build local capacity to undertake (future) work such as fact-finding and ensuring access to justice. Work is already underway in this area but more can be done. Capacity can take years to build and investments now may bear fruit later.
Fourth, work on institutional reform is important. Institution-building work is typically neglected until later stages of peace processes. Yet assistance in key areas such as criminal prosecutions, access to justice and community policing can provide foundations for the restructuring of state institutions down the line.