Sequencing Transitional Justice Mechanisms: Lessons from the Solomon Islands

This essay is part of the Middle East-Asia Project (MAP) series on “Pathways to Transitional Justice in the Arab World — Reflections on the Asia Pacific Experience.” The series explores the pursuit of transitional justice in the post-Arab Spring Middle East, and how such efforts could be informed by past and ongoing justice processes in Asia-Pacific countries. See Resources …
 

Between 1998 and 2003 the Melanesian archipelago state of the Solomon Islands was marked by a violent civil conflict precipitated by a combination of ethnic tensions, economic insecurities, and perceived injustices. Known colloquially as “The Tensions,” the low-intensity conflict left around 200 people dead and more than 11,000 displaced from their homes.[1] In addition, more than 5,700 human rights violations were committed during the conflict, of which at least 1,413 involved torture.[2] Although its transition has not been from authoritarian rule to democracy, the Solomon Islands’ attempts to address the human rights violations that took place during this conflict hold a number of important lessons for the transitional states of the Middle East. In particular, the case of the Solomon Islands provides critical insights into the dynamics of sequenced transitional justice processes, their possibilities, and their limitations.

As part of its peace settlement and post-conflict processes, the Solomon Islands has engaged multiple transitional or post-conflict justice mechanisms in an organically evolving sequence. Beginning with a series of amnesties offered as part of the Townsville Peace Agreement (TPA) in 2000, it has since enacted criminal trials and established a truth and reconciliation commission in what has evolved into a comprehensive approach to addressing past human rights violations. The implementation of these mechanisms has reflected both how demands for justice have shifted as the conflict has come to an end and the way in which transitional justice mechanisms have complemented and clashed with one another.

This paper examines the benefits and pitfalls associated with the Solomon Islands’ experience of sequencing transitional or post-conflict justice mechanisms. In doing so, it aims to draw some general lessons for the transitional states of the Middle East. It demonstrates that although responsiveness to changing transitional justice demands in the post-conflict period has helped the Solomon Islands to avoid some of the problems associated with pursuing single justice mechanisms, combining amnesties, trials, and a truth commission has raised its own set of challenges.

Sequencing Transitional Justice Measures

For much of its early history, the fledgling field of transitional justice was marked by a series of now well-worn dichotomies. Both as pedagogical devices and practical schemes, these dichotomies worked to imply that transitional and post-conflict states must choose between peace and justice, amnesties and prosecutions, democracy and justice, and truth and justice in deciding how to address past human rights violations. However, with the realization that in transitional and post-conflict contexts “the choice is seldom simply ‘justice’ or ‘peace’ but rather a complex mixture of both”[3] came a trend away from the strong demarcation of individual transitional justice practices and processes in favor of more integrated approaches. In 2004, United Nations Secretary-General Kofi Annan promoted a “comprehensive” approach to transitional justice, arguing that:

Justice, peace and democracy are not mutually exclusive objectives, but rather mutually reinforcing imperatives. Advancing all three in fragile post-conflict settings requires strategic planning, careful integration and sensible sequencing of activities. Approaches focusing only on one or another institution, or ignoring civil society or victims, will not be effective. Our approach to the justice sector must be comprehensive in its attention to all of its interdependent institutions, sensitive to the needs of key groups and mindful of the need for complementarity between transitional justice mechanisms.[4]

As Annan suggested, one of the key ways of achieving a comprehensive approach is through the sequencing of transitional justice mechanisms.

Sequencing describes situations in which states institute two or more transitional or post-conflict justice mechanisms in succession. For example, when states institute an amnesty followed by trials and/or a truth commission, they can be said to be following a sequenced approach. As a significant amount of time can elapse between the institution of the first and second mechanisms (in some cases, decades may pass between the granting of amnesties and the pursuit of criminal trials), many states that begin their transitional justice processes by pursuing a single mechanism only shift to a sequenced approach some time later. This addition of subsequent mechanisms often reflects the changing dynamics of the transitional or post-conflict state. Sequencing thus allows amnesties to be granted to facilitate peace agreements or democratic transitions without abandoning the idea of justice. Rather, sequencing allows justice and even truth to be postponed until it is less likely to have a destabilizing effect on the post-transitional state.

In many ways sequencing provides a means of temporarily accommodating the dichotomies of old while allowing their limitations to be mitigated. This is precisely what took place in the Solomon Islands: an amnesty was agreed to as part of peace negotiations, and after cessation of hostilities was achieved those individuals accused of the worst human rights violations were prosecuted. A truth commission was then established to overcome some of the negative effects that trials had brought.

The Solomon Islands’ Sequence

The Solomon Islands’ transitional justice sequence started with the Townsville Peace Agreement of October 15, 2000. In order to secure a cease-fire the TPA included two linked amnesties, a weapons amnesty, and a general amnesty for “[m]embers, leaders and other civilian advisors associated with” the warring parties, as well as members of the police, prison service, or military “who participated in military operations during the course of the ethnic crisis.” This second amnesty provided immunity for criminal acts perpetrated in connection with the Tensions, including “killing in combat conditions or in connection with the armed conflict on Guadalcanal.”[5] Both amnesties were established by acts of parliament in 2000 and 2001.

In 2003, however, with the failure of the TPA and its associated amnesties apparent, then Prime Minister Sir Allan Kemakeza requested the assistance of a regional force to quell the violence and reestablish security. On July 24, 2003, the Australian-led Regional Assistance Mission to the Solomon Islands (RAMSI) arrived in the capital, Honiara. Operating under the pidgin name, Operation Helpem Fren, RAMSI was mandated to “[e]nsure the safety and security of the Solomon Islands” and to institute significant reforms to governance.[6] In particular, what made RAMSI unique among interventions of its type was its “unusually strong rule-of-law agenda” which, in the immediate phase, demanded the restoration of the Solomon Islands’ “‘barely functioning’ criminal justice system.”[7]

As part of its commitment to ending impunity for a range of crimes including human rights violations, RAMSI instigated the “Tension Trials” during which several high profile militia leaders were tried and convicted of a range of crimes including murder, in spite of the previously instituted amnesty laws. It appears that this move from a single mechanism (amnesty) to a sequenced approach was driven by two interrelated ideas: first, in the presence of a strong stabilizing force, amnesty was no longer needed to prevent former militants from spoiling the peace, and second, ending impunity and reestablishing law and order were essential for preventing the Solomon Islands from sliding back into conflict.

Despite their success in convicting individuals accused of serious crimes, the Tension Trials drew significant criticism in some quarters, not only for failing to uphold the TPA amnesties. Critics of the trials also argued that the adversarial nature of the criminal justice system inhibited the recovery of truth and that the incarceration of so many militia leaders ran the risk of preventing “reconciliation processes outside the prison walls.”[8] In other words, they argued that although criminal trials may end impunity, they hamper attempts at broader societal reconciliation.

In response to demands for the truth to be recovered and for reconciliation at the interpersonal, communal, and societal levels, on April 29, 2009, Archbishop Desmond Tutu launched a Truth and Reconciliation Commission (TRC) for the Solomon Islands. Its mandate was to investigate and report on human rights violations that took place during the Tensions, to provide “opportunities for affected parties...to tell their story,” and to recover the truth about what happened during the Solomon Islands’ civil conflict.[9] As the chairman of the TRC, the Reverend Samuel Ata noted at the end of the first day of public hearings in Honiara, “The aim of this public hearing is to put an end to the silence.”[10] The TRC sat for almost three years before presenting its final report to Prime Minister Gordon Lilo on January 15, 2012. The report, though still officially in the hands of the Solomon Islands government, was released by its editor, the Right Reverend Dr. Terry Brown, on the Internet on April 27, 2013.

The TRC Report reveals several interesting features of the Solomon Islands’ sequenced transitional justice process. First, contrary to the earlier idea that truth commissions must pursue truth at the expense of justice, the Solomon Islands’ TRC recognized that within a sequenced approach, in which truth commissions are coupled with criminal trials, both justice and truth are possible. As the commissioners stated in their report, “Impunity is not helpful for reconciliation.”[11] Less positively, however, transcripts of the testimonies made by ex-combatants reveal the frustration many former militants felt at the removal of assurances of impunity. For many ex-combatants the promise of amnesty had been central to their agreement to sign the TPA, and RAMSI’s failure to uphold the amnesty was a cause of ongoing tension. One such former militant, Andrew Fioga, argued that the TPA

was an Agreement which became something like a Constitution of the land; all our hopes were there. Somehow after the TPA, what expected there did not eventuate. We thought amnesty was granted to us; because of that Agreement, all of us signed. We signed this because we thought we were going to be granted amnesty…Why did we have to sign and yet we are put behind bars; where is our amnesty? Our rights have been deprived.[12]

On one hand, the ex-combatants’ sense that they had been duped into signing the peace agreement is understandable. Yet on the other hand so too is the sense that the perpetrators of human rights violations should face justice for their crimes. That is, while the Solomon Islands’ sequence has attempted to provide peace, justice, and truth—in that order—doing so has left a fundamental contradiction at the center of its process. Whether or not that contradiction proves to be fatal to the Solomon Islands’ prospects for lasting peace remains to be seen.

Conclusion

As several states in the Middle East have begun their transitions to democracy with the institution of an amnesty, the experience of the Solomon Islands is instructive. While amnesties have been instituted in Libya and Yemen, a draft amnesty law is currently being considered in Egypt. These amnesties have been explicitly framed as the necessary price to pay for these states’ transitions to democracy and ongoing stability. For example, when pressed on the issue of immunity granted to President Ali Abdullah Saleh of Yemen, State Department spokeswoman Victoria Nuland argued that “[t]his is part and parcel of giving these guys confidence that their era is over and it’s time for Yemen to be able to move forward towards a democratic future.”[13] In response, however, human rights organizations have made increasingly vocal demands that impunity for human rights violations be ended and justice be served. For example, Amnesty International has argued that providing immunity to leaders such as Saleh is “not only a slap in the face of the victims, but...also eat[s] away at the still fragile gains made to consolidate international justice and fight impunity.”[14]

As the case of the Solomon Islands illustrates, however, the institution of an amnesty does not necessarily imply that justice will never be served. Through the practice of sequencing, transitional justice processes in the Middle East may well be able to facilitate peace and democracy, consolidate justice, and provide the victims with the truth they so desperately desire. However, moving from amnesty to justice too quickly may not just mitigate the problem of impunity associated with granting amnesties but erase their stabilizing effect too. What the Solomon Islands case thus reveals is that in sequencing, timing is everything.