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How to deal with former regimes with dubious human rights records is a dilemma
facing most NDCs. On the one hand, the new democratic regime may want to seek
retrospective justice not only because the victims’ closure demands it but also because
the new regime’s legitimacy rests upon a clear break from the past. But on the other
hand, authoritarian holdovers may retain such considerable power and institutional
safeguard that if the fragile new regime decides to take on them, it may risk its own
demise and setback in the country’s democratization.
Harvard professor Samuel Huntington captures this dilemma as a tradeoff
between two approaches -- “prosecute and punish” and “forgive and forget,” and he
argues that each strategy has its pros and cons (1991: 211-31). His admonition is
that “justice was a function of political power” (228) and that a plausible strategy
really depends on the type of transition:
(1) If transformation or transplacement occurred, do not attempt to prosecute
authoritarian officials for human rights violations. The political costs of
such an effort will outweigh any moral gains.
(2) If replacement occurred and you feel it is morally and politically desirable,
prosecute the leaders of the authoritarian regime promptly … while
making clear that you will not prosecute middle- and lower-ranking
officials.
(3) Devise a means to achieve a full and dispassionate public accounting of
how and why the crimes were committed (Huntington 1991: 231).
Roehrig (2002) compares how Argentina, Greece, and South Korea prosecuted their
former military leaders. Rotberg and Thompson (2000) focuses on South Africa’s
Truth and Reconciliation Commission and discusses the utility and limitation of truth
commissions as a common method used by NDCs with repressive or strife-ridden
pasts.
Convention