The Problem of Justice in Post-repressive Societies
The complexity of addressing past injustices remains a prevalent and socially sensitive issue for many societies. The legacy of historical oppression and injustice remains especially acute for Armenia. The need for a transitional justice program is driven by two primary demands: Armenia’s democratization following the Velvet Revolution and the institutional mechanisms and tools required for this democratizing country to deal with the injustice of the post-Soviet period. The concern with a transitional justice agenda (TJA) is that while past injustices place moral and legal demands upon the perpetrators, this also generates the demand for appropriate satisfaction from the victims; for this reason, transitional justice is context-specific and context-sensitive. A robust TJA must initially define the types of wrongdoings that will require accountability, who will be held accountable, and what methods of accountability will be made available. In the context of Armenia, its TJA should seek to deal with two overarching processes: first, nurturing societal transformation that is conducive to a legalistic and democratic political culture, and second, accountability and transparency for three decades of repressive rule and institutionalized injustice. Extensive empirical research shows that transitional justice processes have relevance for social and political stability, and in this context, should provide much structural support in strengthening Armenia’s civil, legal, and political institutions.
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Transitional justice has three levels of interwoven meanings that are conceptualized to apply the concept in legal, moral, and practical terms. In practical terms, the concept refers to formal attempts by post-repressive or post-conflict societies to address past injustices in their efforts to democratize. In legal terms, it is defined as the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses in order to ensure accountability, serve justice, and achieve reconciliation. In moral terms, conceptualization of transitional justice becomes both abstract and complex, because contextualizing morality, specifically addressing such judgments as what is right or wrong, just or unjust, acceptable or unacceptable, usually fall outside the legal and practical purview of the concept. Policy considerations of a transitional justice agenda, then, will primarily concentrate on the legal and practical application of the concept, while taking into consideration moral imperative when pertinent to Armenian society.
Armenia’s post-Soviet system of justice is best defined as possessing an “abusive paradigm,” where a combination of “social norms, laws, and institutional practices” rationalized and enforced a “pathological status inequality” that was perpetuated by a system of injustice. The abuse paradigm in Armenia’s social, political, and justice system allowed the “abuser,” that is, the perpetrator of injustice, to regard as “appropriate” all victims that were targeted for abuse. The problem of injustice in Armenia, then, and the concern of transitional justice, more specifically, is both the individual and systemic injustices that were inflicted on Armenian society. In this context, transitional justice, is a different type of justice; namely, it is not a special type of justice, but rather, it is different. Its difference is defined by its context: it is specifically being applied to transitional characteristics. The guiding principle of this legal theory makes a very important distinction between transitional justice and other types of justice used in societies: retributive justice, corrective justice, and distributive justice. Transitional justice is different because the context and circumstances are different.
More specifically, retributive, corrective, or distributive forms of justice are hinged on three main factors: equity, proportionality, and punishment. The perpetrator is punished by the state for an act of injustice, and, this punishment must be proportional to the injustice committed. These forms of justice follow the principle of non malum sine lege. Transitional justice fundamentally differs from these forms of justice for three important reasons:
1) Considering that the state was the initial perpetrator of injustice, transitional societies must utilize a different form of justice to address the wrongdoings of the past. This contextual difference marginalizes retributive, corrective, or distributive forms of justice, because these forms of justice are dependent on the state. Transitional justice, acknowledging the concerns of legitimacy that the state has, applies a different principle of justice to accommodate the transitional state that a society finds itself in.
2) Issues addressed by transitional justice cannot be addressed by other forms of justice. Specifically in the case of Armenia, the problem is four-fold. First, wrongdoings took place at both the individual level as well as the state level. Second, wrongdoings were systemic, and as such, vast number of individuals acted as perpetrators. Third, persecuting thousands of people under the legal code is not a tenable solution, while persecuting select number of people creates the problem of selective justice. Fourth, accountability becomes a serious problem, as all mid-level perpetrators, who are still employed in government, present a singular answer: “the system made me do it.” Transitional justice, then, allows a society to confront and address the systemic injustices of the past; this is why as a form of justice, it is contextually and structurally different.
3) Retributive, corrective, and distributive forms of justice do not and cannot take into account the transitional state of a society, and its need for a societal transformation into a democracy. These forms of justice are specific to existing legal codes, in that they lack the legal, theoretical, and principled agency to account for societal transformation. Transitional justice, however, is precisely designed as a legal principle that both addresses the systemic injustices of the past as well as accommodating societal transformation into a democracy.
In this light, an important distinction is necessary between individual responsibility produced through trials (which are synonymous with the three forms of justice discussed), and the different outcomes produced by transitional justice. The contextual problems with trials, for a transitional society, is that trials individualize guilt, thus finding an individual, or set of individuals, guilty of certain acts of abuse of power, corruption, etc. This individualization of guilt, however, obscures the responsibility of other citizens, government officials, or the systemic normalization of injustice that was prevalent. The problem of selective justice once again becomes an issue. Transitional justice alleviates this problem by providing a holistic agenda where individual, collective, and systemic factors are all taken into account. As such, the TJ envisioned for Armenia is a form of transformative justice, seeking, in broader terms, the transformation of social structures and institutions.
What Kind of Justice is Armenia Seeking?
An effective TJA must directly specify the scope of justice that the agenda is seeking to address. The coherence of the agenda must be steeped in a consistent and cogent application of principles that inform the type of justice, the type of perpetrators, and the type of resolutions that are being sought by the TJA. In the case of Armenia, for example, the following questions need to be addressed:
1) Will the TJA address all forms of injustice undertaken in Armenia during the post-Soviet period, or will the TJA be applicable to a specific time period, or will the TJA be applicable to a specific group of individuals?
2) Each preferred scope of applicability must be justified by a governing set of principles that are equally and consistently applied; uniformity of qualification is required in justifying why a certain time period or a certain group of individuals are the targets of the TJA.
3) Will the TJA seek to foster societal transformation, or only seek legal retribution from the perpetrators?
4) How will the TJA qualify what constitutes a perpetrators?
5) How will the TJA establish safeguards in order not to appear to be politicized?
6) How will the TJA establish safeguards in order not to appear to be a form of selective justice?
7) Does the TJA draw a distinction between the concept of justice as applied in transitional settings and the concept of justice as applied in criminal codes? Specifically, will justice in Armenia’s TJA be qualified as “ordinary” or “extraordinary?” Is there the recognition that transitional justice is a different type of justice?
8) Collectively, what are the appropriate standards and principles of justice the TJA utilizes when evaluating various legal responses to injustices within the transitional context?
How Important is Timing When Initiating a Transitional Justice Program?
There is a false assumption that transitional justice measures must be enacted immediately to produce maximum benefit. To the contrary, research indicates that there no automatic expiration dates on implementing a transitional justice program. More specifically, research conducted in the post-Communist countries (thus being more comparable for the case of Armenia) demonstrates that timing has almost no independent causal effect on the implementation of a TJA or its subsequent reforms. In observing variations both within and across post-Communist countries over approximately a 15 year time period, the effect of timing on reform efficacy remain quite marginal (the overall effect is quite small). More specifically, timing explains only 3 percent of variation in level of democracy, while only demonstrating 5-9 percent trust differentiation between early reforms and later reforms. The magnitude of effect, however, is quite telling: the effects of reform measures enacted early in the transition are similar to measures enacted 15-16 years into the transition. The empirical output is quite conclusive: the timing of reforms has very little impact on overall efficacy. Further, contrary to popular assumptions that delayed transitional justice programs are less efficacious, findings demonstrate that delayed measures are actually the most efficacious. In this context, based on the data and empirical findings, the timing of implementing a TJA in Armenia is neither too early nor too late: it is precisely the correct time to proceed.
Armenia’s TJA must clarify from the outset what the expectations are for both the agenda and Armenian society. More specifically, expectations are designed into two forms: punishment and/or accountability. Because transitional justice is not designed to be retributive, it cannot, by definition, be only used as basis for punishment (legal, punitive action). The extent to which Armenian society will accept the non-retributive nature of transitional justice is a crucial question that must be accounted for in formulating a TJA. Concurrently, the purpose of TJA is to hold perpetrators accountable, and accountability is reliant on transparency and truth. In this context, Armenia’s TJA will be making an explicit point: it will not seek to punish perpetrators; it will only seek to hold them accountable by demanding truth and transparency. The question on expectations, then, must address the following: will Armenia society find this compromise or trade-off of truth over retribution acceptable?; will Armenian society consider this a form of justice?; and, will the expectations of Armenian society be satisfied? The discourse on expectation and satisfaction remains crucial in the ability of a TJA to affect societal transformation: If Armenian society does not find itself satisfied that justice has been served by the TJA, then the purpose of the entire agenda will suffer from concerns of legitimacy. In this context, the TJA must align public expectations with the mechanisms and tools of transitional justice that it will use in formulating its program. The following implications need to be addressed:
1) Criminal trials, for example, while retributive in nature, risk being perceived as victor’s justice or scapegoating, especially when it comes to accusations of “selective justice.”
2) Reparations, for example, risk being perceived as attempts to buy off victims with blood money.
3) Truth commissions, for example, risk being perceived as a form of whitewashing, where the truth does emerge, but no one pays a heavy price.
Collectively, one of the more acute areas in formulating a TJA is to be empirically informed of public expectations, and to both temper those expectations, as well as make them compatible with the TJA. If Armenian society, for example, is expecting punishment and revenge, the outcome of the TJA will be disappointing, since this is not and cannot be the purpose of a TJA. If, however, Armenian society is expecting reconciliation, truth, strengthening of institutions, and societal transformation, the probability of success for a TJA exponentially increases. Simply put, the effectiveness of transitional justice is defined by the expectations of stakeholders.
Should International Actors be Involved, or Should Armenia Seek Autonomous Resolution?
Since most transitional societies lack the expertise or knowledge-base to develop and implement their own TJA, the general assumption is that relying on international institutions (IOs), NGOs, and intergovernmental organizations (IGOs) is the correct way to proceed. Research, and its empirical results, however, suggest otherwise. More specifically, consulting international experts, receiving technical assistance, or utilizing resources offered by international actors is quite acceptable and beneficial: this is known as hybridity. However, having IOs, IGOs, and non-domestic NGOs formally and actively involved in the transitional justice program is highly questionable. Thus, hybridity has its limits. Research demonstrates that “self-reliant transitional justice states” are more conducive to developing strong democratic institutions, rule of law, and domestic stability. International-reliant transitional justice states, in contrast, are not able to address the complexities of their past, or the transitional state of their current societies, autonomously. The outcome is that instead of charting one’s own course of transitional justice, the given state depends on the international community to script its future. The question, then, is whether Armenia’s TJA should be “internationalized” or “localized?” The localization of a TJA, aside from reaffirming autonomous competence, does not mean that the state proceeds on its own. Rather, while the process is state-led, the active involvement of domestic NGOs and civic society remains crucial. As wide body of research demonstrates, civil society actors play a crucial role in the healthy implementation and actualization of TJ.
The issue at hand, then, is the extent to which Armenia wants to invite international involvement in its TJA? Research demonstrates that transitional justice processes are often heavily “moderated by the foreign policy legacies and interests of donors and by the internal legacies of domestic political elites.” Namely, external support for TJ is not simply about TJ, but also, about advancing the interests and goals that external actors have. For example, while the European Union supports and has provided much funding for TJ programs, its objectives are not a secret, as it seeks to “[s]ituate transitional justice within the security-development nexus paradigm.” The United States, on the other hand, does not have a cogent TJ assistance policy, but it ties all such forms of assistance to its foreign aid structure; thus, the presumption is that the aid given must be conducive to U.S. interests. The broad research on this specific issue suggests that limited hybridity, especially in ascertaining expertise and technical assistance, is recommended, while having formal involvement of international actors is not. The recommended policy approach is an autonomously developed TJA specifically “localized” for Armenia, both in its formalization and implementation.
How Much Should Armenia Rely on the International Court of Transitional Justice (ICTJ)?
Within the scope of addressing the role of international actors, including non-state actors, the perceived prominence of the ICTJ must also be included in assessments with respect to the level and depth of ICTJ involvement. ICTJ remains relatively effective in offering technical guidance, expertise advice, and providing, in general, informal consultations. Empirical data suggests that the involvement of the ICTJ should be restricted to just that: one of limited, informal consultant. Two important aspects must be taken into consideration. First, the ICTJ approach, while promoting a holistic agenda, places high degree of importance on retributive justice for past violence; this emphasis may not be commensurate with Armenia’s political climate. Specifically, the ICTJ contends that criminal justice is an essential part of an integrated TJ program and “should be pursued whenever possible.” Skewing Armenia’s TJA, for example, toward a design that emphasizes retributive justice will very likely produce counterproductive results, especially considering the concerns of “vendettas” and political “persecutions” that are prevalent in the public discourse. In this context, ICTJ’s involvement should be limited to technical and consultative expertise, as opposed to helping design or develop Armenia’s TJA. Second, the influence and effect of the ICTJ on promoting prosecutions and designing TJ programs is inherently limited. With the exception of Latin America, the ICTJ’s effective influence is very limited in Africa, insignificant in Asia, and completely absent in Europe. From a regional analytical model, Armenia’s Eurasian location suggests ICTJ’s effectiveness to be highly insignificance.
The Need for Transitional Justice and the Problem of Selective Justice
Can Armenian society undergo a societal transformation and do so in a just way? The requirement here is two-fold: undertaking societal transformation and doing it justly. If both requirements are not met, the transitional justice program will actually produce injustice. Specifically, Armenia cannot pursue transitional justice through an unjust means. The impediment to a TJA, then, is the use and implementation of selective justice, which, in of itself, is a form of injustice. For Armenia’s TJA to succeed, the problem of selective justice must be addressed head on and removed. The alleviation of selective justice require the following policies:
1) Addressing the injustices of the past cannot be limited to only dealing with violations of civil and political rights; social and economic injustices must also be included in any sufficient account of transitional justice.
2) If exceptions are made for some perpetrators, but transitional justice is implemented against other perpetrators, the very process of unequal application of transitional justice becomes a process of injustice.
3) For a process to be a process of justice, the aims it seeks to cultivate must be defensible. Thus, if Armenia’s TJA is to be morally and legally defensible, the process itself must also be so.
4) Addressing past injustice in a manner that further “entrenches oppression” cannot qualify as an instance of transitional justice, “because what is entrenched is injustice.”
5) For Armenia to implement a TJA, there must actually be a process of transition. Meaning, transitional justice stipulates a process of transition; that is, a transition to democratic governance. In this context, implementation of a TJA goes hand-in-hand with societal transformation: developing and maintaining democratic values and institutions.
BASIC DEFINITIONS OF TRANSITIONAL JUSTICE MEASURES AND INSTRUMENTS
The formation of transitional justice instruments presupposes and requires the active involvement of the following societal groups: vetted government officials, vetted judicial representatives, civic society, journalists, academics, domestic experts, and international experts/observers. Vetting processes must include consideration of technical skills, knowledge-expertise, objective qualification, and integrity of candidates. In the policy recommendation section of this paper, sub-section C, clauses 6 and 7 provide specific recommendations on this process.
Independent Human Rights Commissions, in the form of a Truth Commission, would seek to investigate, reveal, and report cases and instances of injustices, wrongdoings, and human rights violations in the Republic of Armenia from its independence in 1991 to the present. The responsibilities of the Truth Commission should include, but not be limited to, conflict-resolution, protection programs, and fact-finding missions.
Truth Commissions are official, temporary, non-judicial fact-finding bodies that investigate a pattern of abuses of human rights or abuses of power over long periods of time. Truth Commissions are victim-specific and truth-revealing approaches that report the facts of the findings and offer recommendations. Truth Commissions have been demonstrated to be highly effective as both instruments of conflict-resolution as well as facilitating social healing. Truth Commissions foster accountability, identify perpetrators, document past violations, provide transparency, and offer a platform for a public exposure and discussion of its findings. Research demonstrates that during transition and transformation periods, truth commissions are essential for justice and accountability in developing democracies, especially as the country consolidates the democratization process.
Lustration, while as a policy, has been consistently applied as an instrument in transitional justice programs across various countries within the post-Communist space, this report recommends against lustration. The suggested mechanisms and instruments presented in this report are more effective methods of addressing the injustices in Armenia, and would be more commensurate to the needs of Armenian society, than would lustration. Further, lustration may produce a socio-economic backlash, concerns of scapegoating, and in the case of Armenia, the danger of mass institutional failure. Also, considering Armenia’s small population size, and the limited number of bureaucratic experts and technocrats, lustration may contribute to bureaucratic bottlenecks, and in some cases, institutional failure. Lustration has been used in various post-Communist societies: Germany (former East Germany), Czech Republic, Bulgaria, Albania, Hungary, Poland, Lithuania and Estonia. Empirical results are very inconclusive on the effectiveness of lustration and the extent to which the concept contributes to transitional justice. In post-Communist societies, lustration primarily targeted Communist party members, or former communists, and in this context, a political party was targeted for its past wrongdoings. Connected to lustration, but different in format, is the concept of extreme vetting. As will be elaborated in sub-section F, extreme vetting is a healthier and more compatible TJ mechanism for Armenia then lustration.
Reparations have been demonstrated to be an effective mechanism of implementing transitional justice agendas, especially in post-civil war or post-mass violence societies. The applicability of reparations to Armenia’s TJA is not clear cut, and more importantly, cannot be uniformly applied on individual basis. Reparations for Armenia’s TJA, it appears, are best suited to be applied as restorative justice. Restorative justice, which can serve as an instrument of transitional justice, posits that the needs and demands for redress of those who suffered some form of harm in the previous regime requires concrete solutions. More specifically, restorative justice concentrates on the victims of human rights violations and attempts to restore the damage done. The premise is that psychological, physical, and social damage must be acknowledged and addressed in order to heal and reconcile. In this context, because restorative justice seeks to repair and restore the injustice done, the victim’s reparations become linked to restorative justice. Policy recommendations on reparations is provided in subsection F.
The Necessity of Political Reconciliation 
Political reconciliation entails three important variables: reconciliation among citizens, reconciliations between citizens, and reconciliation between citizens and state institutions. Political reconciliation, as a solution and outcome of transitional justice, envisions two levels of development. At the first level, reconciling the relationship between citizens amongst themselves, as well as between citizens and the state. More specifically, developing trust in the rule of law and trust in the institutions of the state. At the second level, political reconciliation requires broad institutional reforms: in order to attain political reconciliation, structural inequality must be mitigated. This requires extensive institutional reforms in a society where structural inequality has been both pervasive and reinforced. In order for citizens to politically reconcile among and between themselves, this reconciliation must be mediated by state institutions. However, and at the same time, if the mediating state institutions suffer from pervasive structural inequality, they cannot serve as sources of mediation. Forthwith, political reconciliation cannot happen if both levels of development do not take place.
For example, for citizens to redress grievances for past injustices between and among themselves, citizens are provided a platform to address these grievances: the courts. If, however, citizens do not have institutional trust in the courts, the ability of this state institution to mitigate the reconciliation of citizens, to address their grievances, and to accommodate past injustices becomes negated. In this context, unless this state institution is reformed where it can be conducive to accommodating reconciliation, political reconciliation cannot take place in Armenia. Aside from reducing this specific example to the courts, if the example is expanded to all of the pertinent institutions in Armenia, the prevailing principle becomes quite straightforward. The purpose of a TJA is to account for this problem and to offer a mediating platform that can offer political reconciliation while the reform process for institutions begins. Understanding that institutional reform is time-consuming and a long-term process, transitional justice instruments may undertake the important responsibly of accommodating political reconciliation between citizens and the state until institutional reform is consolidated and sufficient citizen trust is established.
EMPIRICAL INDICATORS AND COMPARATIVE CASE STUDIES ON THE STRUCTURE, EFFECT, AND RESULTS OF TRANSITIONAL JUSTICE INSTRUMENTS AND PROGRAMS
In formulating policy proposals for the development of a TJA, the following set of important question become relevant:
-which instruments of TJ work best?
-which instruments of TJ are the most effective?
-what pertinent evidence, facts, and data support assessments of TJ instruments?
-which case studies are informative for Armenia’s TJA?
-which agendas, programs, or models are best fitted for Armenia’s TJA?
-which instruments of TJ are compatible with Armenia?
All of these questions are addressed both in this section, as well as in the following section regarding policy recommendations. Collectively, three general points need to be made. First, the effect of TJ instruments vary from country to country, and this is why comparative case studies are so important in allowing us to gauge similarity and compatibility. Second, both comparative analysis as well as statistical and quantified results are applied in the accumulation and application of evidence in support of the policy proposals for an Armenian TJA. And third, when making policy recommendations, especially on TJ instruments, the proposals are cognizant of providing a holistic TJA for Armenia, as opposed to concentrating on only a specific instrument and mechanism. Collectively, evidence demonstrates that a combination of TJ instruments and measures are the most effective method in implementing a transitional justice agenda. Modeling on applicable set of case studies, it is recommended that Armenia’s TJA incorporate the following instruments: truth commission, selective amnesty, extreme vetting, symbolic restoration, selective declassification, and in specific and rare instances, trials. The structure, operational format, and the implementation of the TJA will be conducted through a truth commission framework, with the commission utilizing amnesty, vetting, recommendations for restoration, and where pertinent, referral of evidence and recommendation for trial.
The success of Truth Commissions are primarily assessed through two variables: robustness and output. Robustness is measured via the extent to which the commission receives funding, support, and a broad mandate. The more resources a commission has, the more comprehensive its investigatory capabilities, and as such, this contributes to robustness. The output, quite directly, is contingent on the robustness of the commission: more robust truth commissions can uncover a “more detailed and respected truth about past atrocities…where the findings are public and recommendations are implemented.”
See the case study chart of truth commissions here.
Case Studies of Two Successful/Robust Truth Commissions and One Less Successful
For nearly 45 years, South Africa enforced an apartheid political system, culminating in comprehensive cases of massacres, targeted killings, arbitrary detentions, widespread torture, along with social and economic discrimination. The white-minority government reinforced a policy of deprivation and punishment against the non-white majority of African society. The relatively peaceful transition of power, and assumption of the presidency by Nelson Mandela in 1994, brought about important discourse in forming a national truth commission. The overarching structure of these discussions sought to offer amnesty for those who had committed wrongdoing in return for truthfulness: this was fundamentally a truth-seeking process.
In 1995, the South African Parliament passed the Promotion of National Unity and Reconciliation Act, selecting 17 commissioners to head the truth commission, with renowned Archbishop Desmond Tutu as chair. The Commission was granted the following mandate: power to grant individualized amnesty; search premises and seize evidence; subpoena witnesses; and organize a witness-protection program. The Commission’s framework included three interconnected committees: the Human Rights Violations Committee (collecting testimonies from victims and witnesses and documenting gross human rights violations), the Amnesty Committee (processing and deciding individual applications for amnesty), and the Reparations and Rehabilitation Committee (designing and recommending a reparations program). The work of the Commission was heavily publicized, with extensive access to journalists, the media, and observers. Further, the Commission held public hearings that specifically concentrated on important sectors of South African society: legal community, business community, religious community, the health sector, and the armed forces.
Since 1980, the government of Peru had been in internecine conflict with armed groups in the countryside. This conflict saw a prevalence of disappearances, torture, extrajudicial killings, and grave violations of human rights. In 2000, the government of Alberto Fujimori collapsed, and public pressure led to the establishment of a Truth Commission by the interim government. The Commission was given a mandate to investigate human rights abuses and violations of humanitarian law by both the state and the armed subversive groups. The Commission was comprised of 13 commissioners, with the head of Peru’s Episcopal Conference having observer status. The Commission was chaired by the president of the Catholic University of Peru, a highly respected intellectual. The Commission sought to determine the conditions that gave rise to violence in the countryside, undertake judicial investigations, make proposals for reparations, and recommend reforms.
Peru’s was the first Latin American truth commission to hold public hearings, which included testimony from three former heads of state, as well as videotaped testimony from imprisoned members of the armed groups. The Commission commanded a staff of 400, with regional offices in thirteen towns and cities. Utilizing hybridity, the Commission collaborated with various NGOs (International Committee of the Red Cross, the Human Rights Coordinating Committee of NGOs) as well as an IGO (the Human Rights Ombudsman’s Office). The Commission utilized a complex database system to track, analyze, and record the number, type, and characteristics of the violence and rights abuses uncovered. Based on the utilization of the statistical data, the Commission was able to project that approximately 69,280 people were either killed or disappeared. The quantification of the findings also produced unexpected results: 75 percent of the victims were indigenous Quechua; the majority of victims were from the poorest regions; and 12 percent were local government employees (mayors, magistrates, etc.). The Commission also made another stunning revelation: 54 percent of the killings were actually conducted by the armed groups, while state forces were responsible for 37 percent of the killings. The findings of the Commission also resulted in the referral of evidence to state prosecutors, resulting in the prosecution of various state figures responsible for the atrocities. Most important included former President Fujimori (convicted and sentenced to 25 years), and his former chief of intelligence, Valdimiro Montesinos, (convicted for corruption and extrajudicial killings).
In 2004, Morocco became the first country in the Arab world to form a truth commission. Under the auspices of King Mohammed IV, the Independent Arbitration Panel was formed in 1999 to begin addressing human rights abuses that had occurred for the previous forty years under King Mohammed’s father, King Hassan II. King Hassan had implemented a policy of repression that included executions, arbitrary imprisonment, forced exile, torture, and the disappearance of political dissidents (many who would be held in secret detention centers for decades). The Independent Arbitration Panel primarily sought to provide reparations to victims’ families. This initiative, however, was not enough to address the wrongdoings of the past; civic society and human rights groups pushed for a truth commission. In 2004, the Equity and Reconciliation Commission was formed, with 17 commissioners, chaired by Driss Benzekri, Morocco’s most prominent human rights advocate.
The Commission’s mandate was designed to address systemic and broad-ranging issues of wrongdoing, as opposed to targeting specific, individual responsibility. Further, the mandate prohibited the Commission from playing a role in criminal prosecutions. The Commission was not specifically granted powers of subpoena or search and seizure, however, per law, all public authorities were obligated to cooperate. The Commission’s work, in this context, was primarily research-oriented; ascertaining and documenting information (testimonies, witness accounts, whereabouts of the disappeared, etc.). The report concluded that the state was responsible for torture, arbitrary detention, disappearances, and excessive use of lethal force.
As the outcomes of the three truth commissions demonstrate, South Africa and Peru proved to be quite successful, while Morocco’s agenda was relatively less successful. The explanatory variables are quite apparent. First, whereas both South Africa’s and Peru’s Commissions had search and seizure, subpoena, and robust investigatory powers, the Moroccan program lacked these instruments. Second, whereas the two successful truth commissions had powers of amnesty, thus incentivizing truth-telling, Morocco’s Commission mandate had no references to amnesty. Third, whereas both of the robust truth commissions were granted powers to refer cases and evidence for prosecution, Morocco’s Commission was strictly prohibited from doing this in its mandate. And fourth, and most importantly, whereas both of the robust truth commissions were empowered to ascertain accountability and hold perpetrator’s answerable, the Moroccan Commission had no mechanism of holding perpetrators accountable. Collectively, the analytical results indicate that the strength and scope of a commission’s mandate is highly correlated with the robustness of the truth commission.
Case Study of Two Truth Commissions Contextually Applicable to Armenia
The first truth commission, within the context of transitional justice, was established in 1983 in Argentina, entitled National Commission on the Disappeared (CONADEP). The purpose of the commission was to account for and ascertain information on missing individuals who had fallen victim to the military junta’s crackdown on dissent from 1976-1983. Approximately 30,000 individuals were arrested, tortured, and killed. This became known as the Dirty War. Prior to a transition to civilian rule, the military junta granted itself immunity from prosecution and ordered the destruction of all pertinent documents and evidence related to the victims. In 1983, the military junta, due to public pressure, agreed to popular elections, which resulted in the victory of Raul Alfonsin, who proceeded to form CONADEP with the assistance of NGOs. The Argentine military refused to cooperate with CONADEP. CONADEP, however, was able to ascertain large body of evidence from witness testimonies and discovered documents, revealing details of arrests, methods of torture, detention centers, and the identities of the missing. The details ascertained from the CONADEP truth commission resulted in not only transparency and revelation of all the wrongdoings during the Dirty War, but also the eventual persecution of 1,400 individuals implicated in the Dirty War.
In 1992, after reunification, Germany’s parliament formed the Commission of Inquiry for the Assessment and Consequences of the Socialist Unity Party Dictatorship in Germany. This was followed, in 1995, by the Commission of Inquiry on Overcoming the Consequences of the SED Dictatorship in the Process of German Unity. The mission of these commissions was primarily symbolic, but, at the same time, it also served a fact-finding purpose. The commissions served the following purpose: investigate and document the practices of the German Democratic Republic (East Germany) government from 1949 to 1989. The commission and its operation were consistent with the guidelines that inform Germany’s parliamentary commissions on inquiry. The commission report documented and revealed the physical repression, violation of freedom of movement, and imposition of surveillance on political opponents and dissidents in the GDR from 1949-1989. The commission’s mandate addressed such broad issues as human rights violations, state policy and practice, the structure and function of the SED regime, cases of political, mental, and psychosocial repression, the role of ideology in education, and judicial independence. The purpose and outcome of the commission’s report produced the following: 1) public hearings that offered revelations of the corrupt practices and injustices of the GDR government; 2) declassification of STASI archives that revealed the practices of the security apparatus; 3) opportunity for victims of the regime to confront former officials and officers for acts of injustice; and 4) thorough transparency and revelation of how the GDR government suppressed East German society. The collective outcome of the commission reports offered a large body of information to German society, and more importantly, to those who lived in East Germany, about the state of repression, secrecy, and collective fear that they had lived in. The opening of archives, the revelation of government activity, and the chance for former East German citizens to confront their repressive past contributed to the healing and unification of German society.
The contextual, comparative application of Argentina’s and Germany’s case studies to post-Soviet Armenia is evident in the following areas:
1) While Armenia’s political system was not dominated by a military junta, political leadership utilized the state security apparatus to suppress dissent, where instances of arrest, torture, and even death resulted. While the process was not as far spread or systemic as the Dirty War, there was, however, a systemic structure of repression inherent to this style of governance.
2) The role of the Armenian military, and specifically, the role of certain military personnel implicated in past wrongdoing is a very acute and sensitive issue, both socially as well as institutionally. In the case of Argentina, the military refused to cooperate with the truth commission. Further, when the government succeeded in establishing institutional norms that allowed for the conviction of military personnel, there was a severe backlash from mid-level officers. The government, then, had to limit their prosecutions only to the leadership in the armed forces that were responsible for the Dirty War. In the case of Armenia, this is also a very sensitive issue, because it is evident that systemic wrongdoing has been prevalent in the armed forces; however, an Armenian TJA must be cognizant of the problems faced in the Argentinian case study. Mid-level officers cannot be scapegoated for the wrongdoings of military leaders, while the civilian leadership must be very careful not to equate the charges against individual military leaders with the armed forces itself. This error, on behalf of Argentina’s government, led to a serious setback to its transitional justice agenda, as pushback from the military threatened the democratization of the country. In this context, an Armenian TJA, while having to hold accountable certain military leaders for past injustices, must be very careful of institutional sensitivities.
3) The arrest of General Manvel Grigoryan, for example, has not produced a backlash from the institution of the armed forces, for the charges pressed against him remain separate from military affairs. He is being charged as a private citizen. In a comparative context, however, the charges against former Defense Minister Mikayel Harutunyan, formed CTSO Secretary Yuri Khachaturov, and former Defense Minister Seyran Ohanian have created issues of institutional sensitivity and have been received quite negatively from the Armenian armed forces. If there are going to be further probes, investigations, and accountability (even arrests) of military personnel in Armenia, this must be conducted in a delicate fashion as not to create a clash between civilian and military institutions. As the Argentinian case study attests, utilization of truth commissions is more conducive to social and institutional stability than the initiation of criminal trials against military personal, or the extension of criminal inquiries into the armed forces.
4) In relation to the German experience, revelation of state practices, abuses by the security apparatus, cases of illegal or extralegal surveillance, arbitrary or fabricated arrests, and cases of extortion and organized corruption must be addressed as broader systemic problems, as opposed to individualized problems of the previous political elite. The German truth commissions are an excellent and informative example of addressing structural and institutional problems that reinforced an unjust political system. These forms of revelations are not only “cathartic” for a transitioning society, but also very helpful in fostering reconciliation and societal healing.
General Findings on Post-Communist TJA Outcomes
The implementation of transitional justice instruments in post-Communist states have primarily included truth commissions, declassification, prosecutions, lustration, and amnesties. Research demonstrates that a single instrument (such as lustration) does not produce significant results with respect to its effect on democracy and human rights. However, findings indicate that a cohesive transitional justice agenda, with the collective and extensive implementation of various transitional justice instruments, produce significant results with respect to the effects of transitional justice on democracy and human rights. The statistically significant effects are positive. For example, truth commissions, on their own, produce limited positive outcomes on human rights or democratization; however, when combined with amnesties, trials, and restorations, the outcome shows support for strengthening of state institutions and democratic consolidation. Just as important in this analysis is the inclusion of reconciliation programs as part of the TJA. The Czech Republic, for example, implemented the most comprehensive transitional justice program in Central and Eastern Europe; however, its agenda overwhelmingly emphasized justice at the expense of reconciliation. Survey data shows that, while having the most comprehensive TJA in the region, the Czechs remain moderately satisfied with achieving justice, while highly dissatisfied with the lack of reconciliation. As such, empirical findings indicate that a robust and successful TJA should incorporates truth commissions, declassification, prosecutions, amnesties, and just as importantly, reconciliation programs.
POLICY RECOMMENDATION ON THE FORMATION OF ARMENIA’S TRANSITIONAL JUSTICE AGENDA
The policy recommendation on how Armenia should commence in developing a robust transitional justice program and agenda is based on two primary measures: formation of a Truth Commission and Institutional Reforms. These two broad areas of recommendation, however, both intertwine as well as complement one another. Further, institutional reform, that is, recommendations for institutional reforms, would, to a large degree, depend on the outcome of the Truth Commission. In this context, the formation, development, and operationalization of a national Truth Commission remains the most important policy recommendation for developing a TJA within Armenia. The responsibilities and obligations of the Truth Commission, however, will entail policy recommendation on various other transitional justice measures and instruments: vetting, reparations, declassifications, possible trials, and amnesties.
Formation of Armenia’s Truth Commission
Research indicates that truth commissions are most effective when “they help a strong, reformist coalition to undertake the strengthening of legal institutions.” This is consistent with the political developments in Armenia post-2018. Empirical findings from a cross-national model of 76 transitional countries demonstrates that adoption of robust truth and reconciliation commissions contribute, both in the immediate and cumulatively, to democratic stability, decline in political violence, and general decline in economic and violent crime.
Forming of truth commissions, as data indicates, is best conducive to societal transition if the commission is formed by the inclusive involvement of various social forces, under the legal implementation of the legislature. In this context, truth commissions that are formed by executive decree do not have the same degree of legitimacy, or social approval, as those formed by an inclusive process. With respect to Armenia, the formation of a truth commission may take three forms, none of which should include the involvement of the Prime Minister (executive). With respect to the ultimate purpose of a truth commission, the underlying understanding is that the commission’s goal is to collect and document information, to reveal past wrongdoings, to ascertain victim and eyewitness testimony, to gather evidence, and to reveal to Armenian society, in a transparent and non-politicized fashion, the facts of injustice. The purpose of a truth commission, in doing all this, however, is to attain reconciliation and institutional reform. The ultimate purpose of a truth commission is not punishment or retribution.
Recommended truth commission, in general terms, for Armenia, may take the following form:
1) Parliamentary ad hoc committee acting as a truth commission, with the National Assembly serving as a platform for victims, experts, civic society, and all relevant parties to testify, give evidence, and have all such testimony and evidence televised and publicized.
2) Statutory law passed by the National Assembly on the formation of a truth commission, the composition of this truth commission, its legal boundaries, its responsibilities, parameters specifying its activities, its overall mandate, and a timeline for the completion of its report. The formation of this type of a truth commission would entail the involvement of government officials, domestic non-government officials (NGOs), civic society activists, domestic experts, journalists, and international experts as informal advisors/observers (this does not entail a hybrid commission).
3) Expanding the framework into a joint truth commission that includes members of Parliament, representatives from the executive branch, representatives from the judicial branch, as well as non-government officials (NGOs), civic society activists, domestic experts, journalists, and international experts as informal advisors/observers (this does not entail a hybrid commission).
Recommended formation of a truth commission in Armenia, utilizing the large body of case studies, best practices, and statistical data available, should be as followed:
1) Mandate of the Truth Commission should be relatively comprehensive as observed with the South African TRC. At minimum, the mandate should grant the commission power to offer individualized amnesty, to search premises and seize evidence, to subpoena witnesses, and to hold subpoenaed witnesses in contempt if necessary.
2) The Armenian Truth Commission should borrow the empirical evidence from case studies and structure the Commission through interconnected committees. Five committees are recommended: 1) Committee to investigate human rights violations by the state security apparatus that were politically motivated (detention of dissidents; dispersion of protests; beatings and torture of political activists; etc.); 2) Committee to investigate human rights violations by the state security apparatus that were not politically motivated (beatings and tortures to procure testimony; false convictions and fabrication of evidence; extortion; corruption; etc.); 3) Committee to investigate violation of due process and human rights by the judiciary (conviction of innocent defendants; violation of the rights of the accused; corruption by judges; corruption by prosecutors; prosecutorial misconduct; etc.); 4) Committee to investigate violation of human rights, corruption, and misconduct in the Armenian Armed Forces (deaths of soldiers in unclear circumstances; abuse of power and authority; physical violence and extortion of soldiers; corruption; etc.); and 5) Executive Committee that also serves as Amnesty Committee (processing and determining type, form, and extent of amnesty offered or granted).
3) The functional organization of the Truth Commission is recommended to be operationally based on an Executive Committee. Each commissioner of the respective committees will sit on the Executive Committee. The Executive Committee will be chaired by the Chair of the Truth Commission. Accordingly, the Executive Committee will be comprised of five individuals: four committee commissioners and the Chair. Decision-making, recommendations, investigations, and outputs will be conducted collaboratively. Decisions on amnesty will be undertaken by the Executive Committee.
4) The Chair of the Truth Commission should have symbolic powers, guiding and advising the committees, and providing public legitimacy to the proceedings. The Chair should administer the Executive Committee, but primarily in the role of mediator. The Chair should formally participate in decision-making, aside from advice and consultation, by only casting a vote when necessary for a tie-breaker. The Chair must be recommended by the Parliamentary ad-hoc committee on transitional justice and approved by a vote of Parliament.
5) Borrowing from the successful example of Peru, Armenia’s Truth Commission must utilize a sophisticated database system to document, record, analyze, and track the findings of the various committees within the Commission. Further, the application of quantitative methodological techniques, based on the data ascertained within the database, may produce important statistical findings, causal relations, and probabilistic trajectories.
6) Selection of commissioners, based on recommended best practices, must incorporate the following: a) an Independent Selection Panel (ISP) comprised of experts must be formed to consider and recommend candidates (composition of ISP must be inclusive of civic society, human rights groups, NGOs, journalists, and academics); b) candidates recommended by the ISP must be vetted and interviewed for qualification and impartiality by the ad hoc parliamentary sub-committee on transitional justice; and c) the final list of recommendations by the ad hoc parliamentary sub-committee will be brought to a floor vote in Parliament for approval.
7) Staffing of the Truth Commission, and specifically, for the four recommended committees, must, at the minimum, include the following: a) staffers with experience in working on issues of human rights, human rights violations, or training in this sphere (it is recommended that staffing of a Truth Commission include consultation with Ombudsman’s Office); b) staffers with experience in social work, or trained in social work; c) staff in all committees must include at least one psychologist (this is recommended and has been applied in a large number of truth commission staffing); d) staff in each committee must include computer and information-systems specialists; e) each committee must include staffers with experience in data coding and data entry; f) each committee must include at least one staffer with experience in logistical coordination; and g) all staffers must undergo a training seminar regarding the policies, procedures, and mandate of the Truth Commission.
Recommended budget, size of staff, and operating period of truth commission based on data-accumulation:
1) The anticipated budget of Armenia’s Truth Commission should approximately be $10-$15 million, based on comparative assessments of robust/successful TJAs. The South African agenda, for example, was budgeted at $25 million; the Peru agenda was approximately $20 million; Guatemala and Timor-Leste were approximately $10 million. These examples are utilized because these agendas are qualified as successful/robust. In the context of Armenia, the size, scope, and potential mandate of the TJA falls roughly between Peru/Guatemala on one end and South Africa on the other. Considering Armenia is much smaller than South Africa, while also noting it does not have the post-conflict atrocities of Guatemala, numerical considerations project a budget ranging from $10-$15 for the TJA envisioned and recommended for Armenia. This recommendation is also consistent with the statistical data available on the economic determinants of transitional justice programs. Data demonstrates that countries with GDP roughly between $4.5 to $6.5 billion tend to opt for amnesty as their primary TJ mechanism; countries with GDP roughly between $7 to $14 billion tend to opt for truth commissions as their primary TJ mechanism; and countries with GDP over $40 billion primarily opt for trials. To better qualify the numerical considerations to country size, GDP per-capita measure is also applied: average GDP per capita for amnesty programs is approximately $2000; for countries that opt for truth commission, the GDP per capita approximates in the $4000 range; and countries that opt for trials, their GDP per capita approximates over the $8000 range. Considering Armenia’s GDP of 2019 to be approximated at $12.5 billion, and its per capita GDP at approximately $4,150, data projections squarely position Armenia’s TJ agenda to primarily opt for truth commissions.
2) As noted in this paper, there is an identifiable correlation between staff size and success/robustness of a truth commission. Successful truth commissions, such as Morocco, South Africa, Peru, Timor-Leste, and the recently initiated Kenya TJA, have the following staff numbers: Peru, Kenya, and Timor-Leste approximately 400 staffers; Morocco and South Africa approximately 300-380 staffers; and Guatemala, approximately 200 staffers. In comparing the data with successful/robust TJAs, the numerical size of a truth commission staff ranges from 200-400. Considering the proposed structure of Armenia’s TJA, the five committees that form the Truth Commission, and the type of staffers required for the implementation of the recommended mandate, a staff of approximately 220-250 is recommended. On average, each of the four investigatory committees will be granted a staff of 50, while the Executive Committee, primarily an administrative body, would be granted 20-30 staffers. These numerical recommendations are commensurate with successful TJAs that have been operationalized.
3) The recommended operating period of the commission is recommended to be no less than one year, but no more than two years. Successful/robust TJAs such as Morocco and Peru fall within this range. South Africa, while a successful TJA, on the other hand, lasted for more than 4 years. Guatemala, another successful TJA, lasted much less, approximately less than two years. Considering the complexities of the South African TJA, and comparing it to the recommended mandate for Armenia, along with the nature and scope of the problems addressed, as well with the size and scope of the country, it is evident that South Africa’s length stands out. Observing Armenia’s size, scope of problem-areas for TJA investigation, and operational reach of the truth commission, a one to two year operational period appears consistent with the analytical data.
Recommended investigatory areas, operational procedures, and mandate parameters for a truth commission in Armenia must include, at the minimum, the following:
1) The formation of a parliamentary truth commission is consistent with the broad range of policy suggestions and transitional justice instruments recommended in the development of a TJA. The formation of this fact-finding parliamentary commission to inquire into the wrongdoings of the Armenian state from 1991-2018 is crucial for social healing, transparency, developing citizen trust, and undertaking institutional reform. The mandate of the parliamentary truth commission may include the following: a) testimony, evidence, and revelation of physical repression, violation of freedom of movement, surveillance, and civil rights violations of political opponents and dissidents; b) inquiry into state policy and practices of the previous governments, including an investigation into the structure and practices of the Ter-Petrosyan Administration, Kocharyan Administration, and Sargsyan Administration; c) testimony, evidence, and revelation of political, social, economic, and psychosocial repression systemized and applied in various institutions of the Armenian state; d) testimony, evidence, and revelation of the role of political influence, threat, corruption, and abuse of rights in Armenia’s Armed Forces; and e) testimony, evidence, and revelation of interference, pressure, or imposition from the Executive branch upon the judiciary, and the systemic violation of judicial independence.
2) The parliamentary truth commission must work, function, and hold hearings that are fully publicized, providing the Armenian public complete and unfettered access to the accumulation of testimonies, evidence, and revelations by the commission.
3) The parliamentary truth commission must be granted the power of subpoena, requesting the testimony of former and current government officials, lawmakers, and/or other parties associated with the matter under the commission’s inquiry. The truth commission’s mandate must also grant the power to search and seize, ascertaining relevant and pertinent evidence. The parliamentary truth commission, based on the discretion of the Executive Committee, shall be granted the authority to offer amnesty in exchange for testimony. The scope of the amnesty, however, must be specified within the mandate of the truth commission determined by the National Assembly. Specifically, the parameters of amnesty must be qualified on the form of wrongdoing committed: in general practice, perpetrators of gross violation of human rights, executions/extra-judicial killings, or acts of brutality are rarely granted amnesty
4) The parliamentary truth commission must be granted the authority to request, access, and where pertinent (taking into consideration issues of national security), disclose content from the archives of the state security apparatus during its various institutional stages: a) State Directorate of National Security (1991-1996); b) Ministry of Interior and National Security (1996-1999); c) Ministry of National Security (1999-2002); and d) National Security Services (2002-2018). Selective declassification is essential for both transparency as well as investigative and accountability purposes.
5) Applying the collective and holistic model of Germany’s truth and reconciliation commissions, Armenia’s TJA can produce the following outcome: revealing and confronting injustices from the founding of the Republic of Armenia, as opposed to only and specifically inquiring into a single administration; offering collective and large body of information to Armenian citizens about the functions of its previous governments, including, but not limited to, the state of repression, secrecy, and institutional corruption; and, through transparency and revealing of past wrongdoings, allowing Armenian citizens to confront the injustices of the past and to begin the process of healing and societal transformation.
6) Considering the mandate of the parliamentary truth commission is designed as a fact-finding mission, the commission’s objective is not to punish, persecute, or undertake punitive actions. The mandate of the truth commission would be to undertake a broad and comprehensive fact-finding mission to accommodate the purpose and goal of the TJA. In instances where severe violations of the law are revealed, the commission may refer the findings to the pertinent law enforcement bodies and the prosecutor’s office for further legal inquiry. In cases where amnesty is granted, prosecutorial referral is negated. This is consistent with drawing up the parameters within the mandate on the granting of types of amnesty. When observing the data, amnesty offers rarely conflict with prosecutorial referral, and this is mainly due to the fact that mandates that allow for prosecutorial referral explicitly state that amnesty is not “impunity.” In this context, the power of a truth commission to make prosecutorial referrals counters impunity.
Theoretical Dimensions of Holding Perpetrators Accountable
Broad range of transitional justice measures and instruments have been applied to produce outcomes that contribute to the relative success of a TJA. A specific instrument in holding perpetrators accountable has been to incentivize the perpetrator to be truthful and transparent in exchange for some form of reprieve of amnesty. The stipulation placed on the perpetrator is four-fold: acknowledgment, recognition, remorse, and cooperation.
1) Acknowledgment specifically pertains to acknowledgement of the past, where the perpetrator admits to disclosing the following: the acts of injustice that the perpetrator carried out, the context in which it was done, the role the perpetrator played in either organizing or implementing the injustice, and the victims that the perpetrator targeted.
2) Recognition is inherently necessary on behalf of the perpetrator as an act of acknowledgment. The perpetrator recognizes not only the injustice that he/she perpetrated, but also, recognizes the victims for the harm that he/she implemented. The perpetrator recognizes the victim as a member of the political community, and through this recognition, concedes that the injustice done to the victim is also recognized as an act of injustice to Armenian society (the political community).
3) The perpetrator must sufficiently display remorse for the acts of injustice that he/she was responsible. Acknowledgment and recognition remain incomplete if the perpetrator does not display remorse for the wrongdoings that were executed. The qualification of what constitutes sufficient remorse may be qualified as followed: the perpetrator publicly displays remorse; perpetrator publicly apologizes to the victim(s); perpetrator publicly recognizes his/her acts of injustice; and perpetrator seeks forgiveness from victim(s).
4) The perpetrator who is granted amnesty, along with the three stipulations provided above, must also include a fourth stipulation: it must fully and unequivocally cooperate with the Truth Commission, and if pertinent, with law enforcement bodies. The individual, if applicable, must reveal, corroborate, and provide evidence of other perpetrators, co-conspirators, or higher officials that were either directly involved, indirectly involved, or gave/sanctioned orders to acts of injustice.
Another important dynamic to holding perpetrators accountable is the relationship between the assumption of collective innocence and the assumption that there was systemic and collective perpetration. An individual, for example, may not have been directly perpetrating an act of injustice; but if they contributed to the wrongdoing, even indirectly, this creates issues of systemic and collective perpetration. For example, Officer A and Officer B bring Victim to police station for questions and sit the Victim in the questioning room. Officer A and B then step outside, while Detective A and Detective B enter to conduct the questioning. In the course of the questioning, the Victim is continuously and severely beaten by Detectives A and B, in violation of Victim’s civil and human rights. Officers A and B, however, are not directly involved in these violations; they are, however, standing guard outside, fully aware of these violations, and are actively complicit in the process. Officers A and B are systemic perpetrators, while Detectives A and B are direct perpetrators. This example, of course, does not even include those in the chain-of-command who are aware and have sanctioned these violations. This context, which has been quite prevalent in Armenia until the Velvet Revolution (and perhaps with instances after the Velvet Revolution), poses the following question: is collective innocence assumed, thus only holding Detective A and Detective B liable for directly perpetrating injustice, or is systemic and collective perpetration assumed, in which case both the Officers, the Detectives, and the chain-of-command are held accountable? This is an intrinsic question that must be addressed in evaluating perpetrator accountability for Armenia’s TJA.
Targeted Institutional Reform: Lustration or Extreme Vetting?
In the case of Armenia, as addressed previously, lustration will create two serious issues: first, identifying and qualifying who should be lustrated; and second, there has not been a continuous or dominant political party, or an identifiable group, that can be targeted for lustration. For example, if lustration is applied to the Republican Party of Armenia (RPA) members, or former members, this only addresses the dominant party during the Sargsyan Administration. Should lustration also be applied to the Armenian National Congress (or former Armenian National Movement members) that were in power during the Ter-Petrossyan Administration? No single party, or an identifiable party, was dominant during the Kocharyan Administration: how should lustration be applied in this instance? Or, should lustration target family members of oligarchs and former powerful officials? The problem here becomes quite evident: not only will lustration create clear concerns of selective justice, it will also create legal and applicability problems, as well as broader concerns of gutting qualified technocrats and experts from government institutions.
A more cogent and preferable policy of institutional reform is a concept referred to as extreme vetting. Extreme vetting has been utilized extensively in post-Communist Eastern Europe along with policies of lustration. Noting the difficulty and counterproductive nature of applying lustration in Armenia, it is recommended that policies of extreme vetting be established to address issues of competence, past corruption, past acts of injustice, and all pertinent wrongdoings of the institutions where extreme vetting will be applied. The consistency of extreme vetting is preferable to lustration because vetting is neither ideological, nor is it politicized: it revolves around establishing set of criteria, and based on that criteria, determining and defining quality candidates, or preserving existing officials/bureaucrats. Utilization of vetting is highly recommended for the following two spheres: Armenia’s internal security apparatus (Police and NSS) and the judiciary. The criteria of qualifying the scope and standards of vetting, that is the scope of how extreme the vetting is to be, are to be determined in the mandate given by Parliament to the Truth Commission. The recommended standards of criteria for vetting, based on the case studies utilized in Eastern Europe, are as followed: 1) conflict of interest; 2) grave violation of civil or human rights; 3) grave violation of professional conduct, or flagrant dereliction of duty; 4) evidence of grave corruption; and 5) role and contribution to systemic injustice.
Sub-section D, clause 2 recommends the formation of Committees within the Commission to addresses various spheres within the government’s institutional infrastructure. Two committees are recommended to investigate the security apparatus (for political and non-political persecution) and one committee to investigate the judiciary. These committees may undertake the duty of recommending or utilizing extreme vetting, as specified and qualified in the mandate, as one of the tools in its disposal to apply the transitional justice agenda.
The applicability of reparations becomes difficult in the case of Armenia for several reasons:
1) Similar to most repressive regimes, almost all Armenian citizens suffered some form of damage, and in this context, in order to have a uniform restoration of the damage done, most of Armenia society would need to be given reparation.
2) What type and form of reparation is conducive to the situation in Armenia, and how consistent will it be with Armenia’s social and political realities? More specifically, if the discourse is over financial reparations, the issue becomes inapplicable, for as mentioned in clause 1 above, the government would need to give reparation to much of Armenia’s society. This form of monetary compensation brings about the issue of restitution in integrum, a precept of international law that stipulates full restitution. This, obviously, is not financially feasible (the state simply does not have the funds). If, however, reparations are qualified for those that suffered certain acts of physical violence, or reparations are qualified for the families of those killed under the previous regime, this once again brings back the issue of selectivity. Meaning, the narrative of transitional justice will not be one of uniformity, but rather, one of selectivism: only certain members of Armenian society qualify for restorative justice. Further, this would create more complications than solutions because it will introduce a discourse on whose suffering is more relevant, or whose injustice was more severe. Selective reparations, then, considering Armenia’s social, cultural, and political environment, may create more problems than solutions.
3) It is the recommendation of this policy paper that Armenia’s TJA should employ a method of restorative justice known as symbolic reparations. Symbolic reparations will alleviate the problem of selectivism as well as offer a society-wide solution to the damages committed by the previous regimes. Symbolic reparations include the following: public recognition and acknowledgement for the suffering of the victims; commemoration(s) marking past wrongdoings; and constructing places of memory in the name of the state apologizing for the injustices of the past.
The set of policy proposals in this White Paper utilize the extant literature and research findings to accumulate data-based knowledge in the formation and development of a transitional justice agenda for the Republic of Armenia. Relying on both qualitative analysis and quantified results, the policy recommendations are also tailored to be compatible with both Armenia’s current political climate, as well as the laws and statutes that define and qualify the formation of state-sanctioned bodies. Empirical research has produced the following results on the broader application of transitional justice: 1) transitional justice is significant at every stage of transition; 2) research consistently demonstrates that the concept of justice is a broad social category, and not simply a legal notion, thus emphasizing societal and institutional reforms; 3) findings demonstrate that past experiences affect attitudes to transitional justice as well as to its outcomes, and in this context, the experience of Armenian society and its expectations are paramount; 4) truth commissions significantly affect the demand for changes to social structures and institutions; and 5) empirical results consistently demonstrate that reconciliatory measures have positive effects on societal healing.
Three of the main indicators for this project emphasize the following. First, that transitional justice is more about the “transitional” than it is about “justice” in of itself; in this context, this proposed transitional justice program envisions societal transition: the transition of Armenia into a democratically-consolidated society. Second, the proposed TJA is the initial and first part of the broader transitional process: the findings and results from the transitional justice mechanisms will allow for recommendations, reforms, and institutional correction. And third, the proposed TJA is designed to be encompassing, both legally, morally, and culturally: transitional justice is not about retribution; rather, it is about transparency, accountability, and reconciliation. The broader outcome, then, must be two-fold: the healing of Armenian society from the wounds of its past, and the reforming of state institutions to consolidate the public’s trust.
The author would like to express his gratitude to research assistant Lusine Sargsyan for undertaking important work in this White Paper.
This project is funded by the UK Government’s Conflict, Stability and Security Fund.
The opinions expressed are those of the author and do not necessarily reflect the official position of the UK Government.