07 Mar Seychelles, the United States, and Transitional Justice: Big Lessons from Little Countries
Justin Loveland is a freelance legal consultant in public international law, transitional justice, and international human rights, currently working as Senior Legal Consultant to the Truth, Reconciliation and National Unity Commission of Seychelles. Twitter: @justinmloveland
Photo: Kelly Kline
Victoria, Mahé, Seychelles—June 5, 1977. In the Indian Ocean northeast of Madagascar, on the main island of Mahé, Prime Minister France-Albert René unseated the country’s first postcolonial president, James Mancham, in an overnight coup d’état. The next day he launched his authoritarian regime with broadcasts of a new government in power and the killing of a community member sympathetic to the Mancham government.
Having risen to prominence in the Seychelles People’s United Party with promises of better living and working conditions for the masses, a communist-style economy with improved medical care and free education, and political independence from centuries of colonial rule, René did try to bring these goals to fruition, although he started by unilaterally suspending the constitution, instituting a one-party state, and ruling by proclamation and decree for the next 15 years.
To keep order, René used a combination of the army and police, blurring the lines between the two, and started a People’s Militia where neighbor spied on neighbor and civilian members used army-supplied guns and equipment to intimidate those perceived as not sufficiently supportive. Militia membership was a way to show allegiance to the regime. Dissidents were harassed, detained, tortured, or disappeared, their families often forced to self-exile to the United Kingdom or Australia.
Victoria, Mahé, Seychelles—March 5, 2021. The Truth, Reconciliation and National Unity Commission (TRNUC)—a truth-seeking body devoted to investigating alleged violations of human rights during or in relation to the 1977 coup d’état, bridging divisions caused by such violations, and uniting the people of Seychelles “around a common agenda”—is halfway through its three-year mandate.
Through its investigation of over 400 individual complaints, the Commission has learned that René, a lawyer by training, manipulated the rule of law to detain, cause the killing or disappearance of, and steal and redistribute the land and property of individuals and families. Having taken power in a coup, René was eternally paranoid that he would be similarly deposed; throughout the 1980s the country thus saw repeated declarations of states of emergency and en masse detentions and other human rights violations. Sometimes these emergencies were in response to actual threats, such as the 1981 mercenary attempt investigated by a UN Security Council commission of inquiry or the 1986 insurgency led by René’s own Minister of Defence, and sometimes not.
More fundamentally, the Commission has learnt that the emotional tyranny of “ek nou, pa ek nou” (“with us or against us”) runs deep, and that power still corrupts, but also that transition can beget justice so that communities can be made whole.
These are foundational precepts of the field of transitional justice. With roots as far back as WWI, transitional justice practitioners work toward achieving post-conflict or post-transition accountability for the previous regime in power. While popularly the term “regime change” inspires images of dictatorships transitioning to democracies, there are many gradations of political change. Regime change can thus manifest as a transition from a repressive regime to a less repressive one, or even from one controlling political party to another.
In order to spur accountability for human rights violations, democratic reform, and the non-recurrence of improper acts, transitional justice efforts can include a wide range of practices that are regularly considered and sculpted to the particularities of the domestic context in question. For instance, this might include a truth commission like the Seychelles TRNUC—a temporary, government-initiated investigative body with a mandate and evidentiary standards broader than but complementary to a court—or an expansive toolbox of other processes to achieve goals of “peace, reconciliation and social cohesion, retribution, punishment, restitution, reparation, truth-telling, vindication, validation, deterrence, prevention, reform, and development.”
Given the nature and scope of human rights violations and the often conflict-related context in which they occur, transitional justice is commonly thought of as something that is operative in and applicable only to post-conflict and post-authoritarian contexts, like the coup d’état and René regime in Seychelles. Seen in this way, actors like the United States have supported transitional justice efforts abroad in multiple situations. The U.S., however, has never considered this toolkit in the domestic context.
Washington, D.C., United States—January 6, 2021. In an armed insurgency incited by then President Donald Trump—what some have decried as an attempted coup d’état and others have defined as an insurrection, autogolpe, or domestic terrorist event—thousands of armed extremists stormed the U.S. Capitol, quickly broke through police barriers, terrorized lawmakers attempting to certify the election, and caused property damage and multiple deaths.
This attempted power-grab on the backs of startling—and unsubstantiated—claims of election fraud is of course just the latest of the dying paroxysms of the Trumpian dystopia that has been the reality of the last four years. The insurrection follows and must be contextualized in the tumultuous summer and ensuing fall electoral season that are themselves the culmination of decades of deep societal unrest and unfinished business, particularly around racial justice.
The necessity of the Black Lives Matter (BLM) hashtag and then movement, for instance, stems from deep institutional racism, unreasonable and disproportionate brutality and targeting of non-white racial groups, public mistrust of governmental bodies like police departments, decades-long persecution and human rights abuses of Black people, and the still-unmet demands for a genuine accounting for slavery, Jim Crow, and the failures of Reconstruction.
These problematic trends were then amplified to the point of near-democratic upheaval by the disinformation crisis that emblematized the Trump presidency. One crisis often begets another, and propaganda also played an inextricable role in the legitimacy crisis with which the Biden Administration must now contend both at home and abroad.
To say that there has been both conflict and transition in the “established” democracy of the United States, including in the past month alone, seems like a gross understatement. The creeping authoritarianism of Trump, which led to various conflicts with varying levels of accountability, satisfies both the post-conflict and post-repressive state contexts where transitional justice is used. And indeed, the domestic applicability of transitional justice practices is a conversation that is gaining traction.
Shedding the arrogance of U.S. exceptionalism and learning from our collective, global experience of imperfect governments and the fragility of democracy is the task at hand. For all its resources and legal and political traditions, the United States stands to learn a lot from international practitioners and outside states with experience deploying transitional justice processes to address the repressive policies and practices of the past.
The United States is not a complete stranger to transitional justice, although these mechanisms have been more often employed at the local level or to address discrete incidents and injustices. A quick look at history points to the various circumstances in which transitional justice mechanisms have already been employed in the U.S.: the Maine Wabanaki-State Child Welfare Truth and Reconciliation Commission sought to address the separation of Native children from their families as far back as the 1800s, and completed its report in 2015. The racially-motivated killings by the KKK and neo-Nazis in 1979 in Greensboro, NC, were investigated in 2004 by a local truth and reconciliation body. In 1994, the Advisory Committee on Human Radiation Experiments studied and provided new insights into experiments of ionizing radiation unlawfully conducted on non-consenting medical patients, prisoners, and communities between the 1940s and 1970s. That Committee was created by Executive Order and subject to federal legislation. The Maryland Lynching Truth and Reconciliation Commission was established in 2019 to investigate and address the legacy of lynchings of African Americans by white mobs in that state between 1854 and 1933. Other fact-finding and conciliatory efforts were made in response to historic, painful events in Rosewood, FL, and Tulsa, OK.
Perhaps most famously, the U.S. Commission on Wartime Relocation and Internment of Civilians (CWRIC) was set up in 1980 in response to the incarceration and human rights violations of Japanese Americans during WWII, resulting in formal government apologies, legal reforms such as the Civil Liberties Act of 1988, “corrections” to historical accounts such as the judicial reconsideration and overturning of the wartime conviction of Fred Korematsu and others, widespread public education, and $1.2 billion in compensatory reparations to eligible survivors. Whether or not the CWRIC or these other processes were branded as “truth commissions” or an effort at “transitional justice,” their effects mirrored those regularly hoped for in a transitional justice setting.
A fuller truth commission as part of a transitional justice plan has also been proposed and debated in the United States, most recently on the themes of police violence and racism but also in light of (rejected) calls post-9/11 to address harm caused by U.S. overreaction to that instance of terrorism.
The current political moment in the United States is crying out for transitional justice processes to help reform the criminal legal system, bolster democracy, interrogate white supremacy, and encourage racial healing. Where a truth commission may be of use is in providing a fuller factual record and helping relieve societal tension, the intention being to reveal the truth(s) of and confront past conflicts now in order to avoid future repeats and cycles of violence, anger, political turmoil, and polarization. The insufficiently addressed legacies of slavery and Jim Crow, for instance, have arguably again risen to a boiling point in the U.S. in the form of continuing racial discrimination and persecution, economic disparities, lack of political representation for BIPOC communities, the disparate impact on gender and women of color, and so many other manifestations of hate and misunderstanding.
Many investigations have been done and expert panels convened on the effects of slavery in the U.S., and reparations have been advocated and continue to be considered in the halls of Congress. But the intentionality, story-telling focus, and political will behind a transitional justice-based approach to this and related issues could prove effective where other policy responses have not: in the more holistic ambit of acknowledgement and apology, forgiveness, identification of specific policies and practices to dismantle and reform, and reconciliation and the gradual easing of tensions.
At the same time, as with the court system, one cannot expect immediate results with a truth commission. They are generally very slow-moving, and dependent on similarly slow-moving governments to implement their recommendations—but this may be an acceptable concession for a society with deep, systemically entrenched inequities, whose populace may place more priority on addressing the fuller scope of abuses and less on more immediate though limited indictments and verdicts (as temporarily satisfying as the latter may be).
A truth commission is just one slice of the transitional justice pie. While tricky to evaluate, broad comparative trends indicate that truth commissions that are employed alone as the only transitional justice tool can actually have negative effects on democracy and human rights, as they can exacerbate problems without providing lasting solutions due to their temporary mandate, common resourcing issues, and the failure of governments to implement their recommendations. When used strategically as part of a holistic transitional justice framework, however, they can contribute meaningfully to accountability and positive transformation by thoroughly assessing a situation, making findings that may prove useful to complementary processes, and providing expert recommendations on next steps.
To be clear, transitional justice is a process. And there are other paths open to the U.S. besides establishing a national truth commission: among many recommendations, the inspector general system could be strengthened or re-oriented, more energy could go into state and local reforms as well as federal accountability measures, and it could even be a salient and apt exercise to consider the recent impeachment trials as a form of lustration, a practice used in former Soviet-controlled states in Eastern Europe to disqualify certain corrupt officials from ever again holding political office. While lustration in those contexts drew criticism for lacking due process safeguards, vetting or screening techniques can be used successfully and have been used in El Salvador, Haiti, Bosnia, and Liberia in security settings. “Impeachment” as understood in the U.S., especially when unsuccessful, is thus a far cry from early procedures employed in post-Soviet states but at base the latter political vetting method has a similar barring effect as a Senate impeachment conviction and can still carry inherent and potentially important effects of public reconciliation, societal healing, and guarantees of non-recurrence.
But whatever processes are ultimately chosen in the United States, there are big lessons to be noted from even the tiny context of Seychelles:
- The importance of perception: The process(es) chosen must be intentional and entered into with public buy-in and support, mindful of the reality that it may take several years for even the beginnings of results to be seen. In the Seychelles, the TRNUC’s mandate was decided by the National Assembly and the public regularly tune in to the televised hearings of the TRNUC, gossiping about them like a national soap opera and cornering the Commissioners at grocery stores to tell them their stories. The U.S. Congress may similarly be the proper avenue to establish certain transitional justice processes following public debates, rather than the President through Executive Order.
- Resourcing: Transitional justice measures that are perceived as unsuccessful commonly fail due to inadequate funding, often representing a lack of political will or appreciation for the importance of the project. While the Seychelles TRNUC is at risk of this, its budget proposals consistently slashed by half as a symptom of ebbing political support, the U.S., which is among the wealthiest states in the world, has the means to honestly and transparently determine in consultation with experts the requisite amount of funding for the chosen process(es) and allocate those dollars. In this regard, many separate processes at the local level might flounder without the cohesion, standardization, and resources of a national commission or process as proposed by H.R. 40 or House Res. 100.
- Actors: While historically a lawyer-driven and legalistic undertaking, over the past several decades the field of transitional justice has diversified and become deeply interdisciplinary, involving experts in psychology, sociology, history, theology, political science, journalism, and more. The TRNUC is representative of other truth commissions in this respect, having a lawyer as well as professors, a bishop, NGO advocates, and other professionals as commissioners. The Chair is also an international commissioner, a desired attribute seen to lend credibility and impartiality to an otherwise national truth and reconciliation process. Processes used in the U.S. should likewise draw from a diverse pool of stakeholders.
Washington, D.C., United States—February 10, 2021. The world watched an historic second impeachment trial for a U.S. president, which some may view as a potential beginning to the role of transitional justice in the United States. Whether or not such turns out to be true, the public will invariably turn to the current Administration to ensure that accountability, truth, reconciliation, and reparation—in their many forms—remain priorities.