It is not too difficult to diagnose a confluence of confusion and misunderstanding, and as a result, a great deal of discourse, both at the societal and elite levels, over the clear indications made by the Pashinyan Administration concerning the utilization of transitional justice in dealing with the various legal-judicial matters confronting Armenian society.
The expansive nature of the conversations concerning this subject have produced three areas of inquiry. First, what exactly is transitional justice and what is the purpose of this concept? Second, how applicable is it to Armenia, both in its legal-constitutional context as well as the implications of its politicization? And third, why has the proposition of using transitional justice created hysteria within both the Republican Party of Armenia (RPA) and other loyal constituents of the previous regimes? Analytical considerations of this concept and a supplemental assessment of its socio-political implications indicate two general explanations. In the case of developing a cogent understanding of transitional justice, most of the commentators do not have a rigorous conceptualization of what the concept entails and how it may be applicable to Armenia. At the same time, in case of the exaggerated fears expressed by proponents of the previous regimes, use of transitional justice creates a high probability that the legal process and outcome will be unbiased and de-politicized, thus legitimating the possible convictions or punishments of figures from the previous regimes—by marginalizing claims of politicization, this limits the ability of the RPA and loyalists of the previous governments from making claims of political persecution.
On July 17, representatives of the International Center for Transitional Justice (ICTJ) and Justice Initiative of the Open Societies Foundation visited Armenia for a consultative meeting with Prime Minister Pashinyan, during which the Prime Minister noted his government’s campaign against corruption, improving administrative efficiency, and securing the independence of the judiciary. This programmatic approach to implementing systemic reforms in the justice system were complimented by the readiness of the visiting organizations to work with the government in operationalizing the said policy goals. Contextualizing such developments, at his speech in Republic Square marking the first 100 days of his government, the Prime Minister noted that the concerns of endemic corruption within the judiciary shared by most citizens, and considering that the judiciary was the least independent and one of the most corrupt state bodies, Pashinyan’s suggested solution during his speech was the possible implementation of transitional justice through “transitional courts” and “transitional judicial bodies” to address the systemic and structural ills within the judiciary. This notation of applying transitional justice as a mechanism of addressing the country’s legal-judicial structures and processes set off a long set of tirades by RPA MPs, with an extraordinary statement by Speaker of Parliament Ara Babloyan displaying shock and concern, especially in his fear that transitional justice will be implemented through an “illegal” retroactive application of the law.
The suggestion by Babloyan here appears two-fold: transitional justice mechanisms are or may be incompatible with the constitutional statutes of Armenia, and, aside from the legal variable, a broader fear that transitional justice will pierce the formal and informal structure of immunity that members of the previous regimes have found protection under. Such concerns, however, were subsequently and directly addressed by Minister of Justice Artak Zeynalian, specifying that transitional judicial bodies are commensurate with Armenia’s Constitution and do not threaten judicial independence, and as such, “constitutional and international obligations will not be breached.”
What is Transitional Justice?
The concept of transitional justice encapsulates a broad range of tools and measures utilized by nations that are transitioning out of repressive, non-democratic political systems, and specifically in the case of post-Soviet countries, both transitioning and dismantling the informal and corrupt networks of patronal politics. These measures range from judicial and non-judicial components to formal, informal, retributive, and restorative legalistic and policy implementation. Contextually, it is not a form of soft justice or a collective process of collaboration-in-return-for-amnesty, but rather, a concerted process of achieving justice in order to address past grievances, current structural and systemic flaws, and fundamentally, to set the foundations for healthy legal governance by having accountability. Due to the broad nature of the concept, elements of transitional justice are customized to meet the legal, political, and social problems acute to the country at hand. In this sense, application of transitional justice within Armenia will primarily concern itself with addressing past grievances, legally stipulating accountability for abuse of power and authority, and in an overarching sense, systemically rooting out corruption. Normatively, transitional justice is both encouraged and promoted by international norms and standards, and has become an important subfield of international law, as articulated by the United Nations Office of the High Commissioner for Human Rights (OHCHR), along with key instruments offered by the UN and international law to clarify and implement transitional justice.
A collective set of instruments have been suggested as possible measures and mechanisms that may be employed within Armenia. The first consideration is institutional reform, which will not only include structural reform, but also, substantive reform, where institutional accountability leads to restoration of confidence in these institutions. In this context, PM Pashinyan’s appeal to transitional judicial bodies is commensurate which such reforms; namely, due to the fact that Armenia’s judicial branch suffers from a crisis of legitimacy because of past transgressions and deeply-rooted corruption, instruments such as transitional judicial bodies may surgically remove intertwined pockets of corruption, networks that allow for indirect influence upon judicial independence, and a general mechanism of rigorous oversight that stipulates and strictly enforces accountability. The second consideration notes that mechanisms of institutional reform are obviously not strictly confined to judicial institutional reform, but also, to the broader fight against corruption. Because patronal political systems function through formal and informal networks of corrupt practices, the web of corruption is not confined to a single institution, but rather, a set of institutions that intertwine with one another, along with social forces ranging from economic actors such as oligarchs, local political bosses, pseudo-criminal elements, and corrupt bureaucratic and political officials. This is why a systemic problem requires a wide-ranging systemic solution, and this is precisely what the instruments of transitional justice allow.
The third consideration revolves around the socially-emotional and controversial issue of addressing the events of March 1, 2008, and the extent to which transitional justice will allow for a more impartial legal resolution. This consideration, of course, is not detached from the above two considerations, since the problem, again, boils down to distrust and lack of confidence in the judicial institution, the inherent perceived nature of systemic corruption in this and other intertwined institutions, and the ubiquitous concern over judicial independence. What the application of transitional justice will allow, then, is not only the alleviation of these problems, but also the de-politicization of the process itself. By insulating the legal integrity of the process from politicization, the process and outcome of the potential trials that will address accountability for the March 1 events will have much legitimacy. And this notion of legitimacy will not only be a byproduct of domestic legal outcomes, but will also be consistent with international standards and expectations, since transitional justice is an international norm.
What Will Transitional Justice Look Like If Implemented in Armenia?
The analytical considerations of this section are more attuned along the lines of offering the Pashinyan Administration policy guidance, since the government, at this stage, does not have a clear policy of what transitional justice will actually look like in Armenia. That being said, the government, obviously, is not clueless, but rather, it has not developed and formulated what transitional judicial bodies, for example, will look like, or how the instruments of transitional justice will be made compatible with the legal and constitutional statutes of the country. In providing a small window into how this may possibly play out in Armenia, Minister of Justice Artak Zeynalyan noted that the government is studying the experience of Georgia, in specific, as a comparative case study in the implementation of transitional justice. In this context, by undertaking a cursory case study of how transitional justice was formulated and practiced in Georgia, we may develop a better understanding of what the Pashinyan Administration is considering. Further, this will allow for policy suggestions to the Administration.
Georgia’s utilization of transitional justice had three main deficiencies that harmed the full and healthy implementation of the concept, while failing to robustly reform the institutions under consideration. In this context, Minister Zeynalyan specified that not only will Armenia consider the Georgia case study, the government will also be attuned to the failures in Georgia and thus use these failures as learning tools in formulating Armenia’s own policies on transitional justice. Georgia’s failures were evident in three main areas: 1) selective application of justice that seemed arbitrary and non-systemic, thus bringing about accusations of political persecution; 2) formation of various reform structures and bodies consistent with international norms, but an artificial and non-substantive method of using these newly-formed institutions, hence giving the perception that these institutional reforms were empty and cosmetic; and 3) lack of rigorous oversight mechanisms that addressed the shortcomings and flaws of the entire process, hence bringing about concerns of interference by the executive branch, lack of independence for the transitional bodies themselves, and as such, a misuse of the transitional justice concept.
By correctly and properly formulating and implementing transitional justice instruments, Armenia will be able to bypass many of the shortcomings that Georgia suffered from, and as such, produce outcomes that would avoid accusations of miscarriage of justice and politicization. One of the important lines of recrimination against Georgia’s government by the ICTJ report [page 13] was the recognition that the NATO Secretary General, the EU Commission President, and the U.S. Secretary of State all criticized Georgia’s process of prosecuting and holding members of the previous regimes responsible as being “politically motivated persecutions.”
This posture harmed Georgia’s implementation of transitional justice in two ways. First, it legitimated the claims of those who, in fact, had abused power and authority, that the process was political as opposed to being legal, hence allowing such individuals to either get away with their past crimes, or conceal their guilt under the guise of being victims of political vendettas (this posture, although taken in a pre-emptive fashion, is consistent with how former Armenian President Robert Kocharyan is addressing the attempts of government to prosecute him for the March 1 events). Second, and in a broader sense, because important international voices had accused Georgia’s process of begin politicized, the legitimacy of their endeavor took a severe hit, and so when Georgia attempted to have previous high-ranking officials extradited back to Georgia, the pertinent European countries rejected the requests.
The considerations for Pashinyan’s government here are three-fold. First, the Special Investigative Service (SIS), which undertakes investigations of current and past officials, is the government body that ascertains the evidence, arrests the accused, and then transfers the case to the Prosecutor’s Office. In order to alleviate accusations of politicization, the Pashinyan Administration must do two things: form a transitional justice body that inspects and oversees the SIS investigations themselves, thus providing for transparency and de-politicization; and, at the same time, form a transitional justice body that also overlooks the Prosecutor’s selection and implementation of the facts of the case, thus avoiding concerns of bias and selectivism. In this specific instance, then, to avoid the mistakes of Georgia, the Armenian government must formulate two independent transitional justice bodies that have oversight of the government’s own investigative and prosecutorial processes. This is quite important because much of the discourse on transitional justice bodies have revolved around forming them to inspect and overlook the courts, the judiciary, and the conduct of judges. While this is an important part of the process, by expanding this to the government’s own investigative and prosecutorial bodies, however, the process becomes much more balanced and immune to accusations of institutional bias. Thus, not only will judges be cognizant of being highly professional, but so will the investigators and the prosecutors. By spreading oversight and accountability, the Pashinyan Administration will, to a highly qualified extent, magnify the integrity of the process.
The second consideration would be an intermediary body that communicates between the accused and the government, which will provide advice on the consistency and correct implementation of the transitional justice policies guiding the process, as well as provide a comprehensive report on both the conduct of the government and the accused during the legal process. This intermediary body will also need to have oversight, but not interference, authority over the court proceedings and the conduct of the judge(s) and the judiciary. The overall intent of this specific transitional justice body would be to provide further transparency into the process, and thus alleviate any possible concerns or accusations of unfairness, miscarriage of justice, or any embellishments upon the legitimacy of the legal process.
The third consideration is that these bodies must include representatives of legal experts from both within Armenia, as well as representative(s) from the international community (this will be more correctly determined by the Venice Commission, which will be explained later in the article). Supplementing these legal experts will also be representatives from pertinent members of civil society, whether this pertains to NGOs that engage in social justice issues, or civic groups and think tanks that deal with social, legal, and constitutional matters. The objective of this mechanism, of course, is to provide for inclusiveness, which would delimit claims of intrusion by the executive branch, pressures from any government or non-government forces, and thus allow for the impeccability of the legal process to reach its most logical conclusion.
Continuing with the ICTJ report [page 19] on Georgia, another important case of limitation within Georgia was its relatively underdeveloped civil society, which the report found was not able to influence transitional justice, that is, they “are mostly politically inactive and are not organized…Civil society is seen as weak and not linked to communities.” This noted limitation in Georgia is one that Armenia can easily bypass, considering the fact that not only does Armenian society have a robust and well-developed civil society, but also the fact that most of the civil society groups and leaders are highly-educated, politically active, well-versed in policy issues, and have actual experience in issues of social justice. Further, and more importantly, after the Velvet Revolution, many important leaders of civil society became part of the various government institutions and hold positions in the Administration, hence providing an important link between civil society, the government, and communities. This conveyer belt of transmitting social justice concerns, coordination, policy-making, and policy implementation is indicative of a healthy infrastructure in Armenia. This will not only assist in the formation of transitional justice instruments and policies in Armenia, but will also provide legitimacy to a process when such a process is not a singular endeavor, such as in Georgia, but rather a diverse and multi-faceted undertaking between government, civil society, and communities. The Pashinyan Administration will do well to make certain that the formation of the transitional justice bodies, the development of pertinent policies, and implementation of these policies along with the actual responsibilities of these transitional justice bodies include the full and inclusive participation of a multitude of actors (both domestic and international; civic and government, so on and so forth). By diversifying the intellectual scope of the participants, the legal expertise of the participants, and the ideological diversity of the participants, the full objective, unbiased, and non-politicized integrity of the process may be unequivocally preserved against undo accusations.
Since transitional justice programs are not one-size-fits-all models, there are a broad range of preferences that a given society selects in formulating their policies and instruments. The first preference for Armenia remains political will, not the will to prosecute and satisfy public anger over the abuses of the past, but rather, a political will and a vision of transitional justice that is informed through a national dialogue.To facilitate a comprehensive approach to transitional justice, the pertinent legislative and possibly constitutional reforms must be part of an open national dialogue, where society becomes fully aware of the range of options and the pending expectations.
The second preference leans towards truth-commissions, especially if Armenia’s political culture is to escape the conspiratorial ethos and develop trust in government. Namely, since much of the activities of the past governments were in the “dark,” Armenian society remains uncomfortable with transparency; this is, to a large extent, an alien concept. By exposing the miscarriage of justice of the past, all abuses of authority, and the general and flagrant violation of the law by the previous political elite, truth-commissions will offer an outlet for a previously-suppressed society to vent its collective trauma. In this context, truth-seeking measures are essential if a society is preparing to implement transitional justice programs. This would, in turn, require either amnesty or immunity to past officials who engaged in such forms of behavior, but are now willing to fully cooperate and confess their crimes. The amnesty structure, of course, will be reserved for those who did not engage in violent crimes, but rather, partook in the patronal system for either economic gain or to maintain their position or status. In this context, truth-commissions may provide incentives for those who remain silent due to fear of persecution, yet their crimes were minimal, and so they possess a great deal of information that could answer and heal the wounds of Armenian society.
The third preference addresses institutional reforms, which is already a broad consideration by the government, has much backing from society, and remains to be formulated and passed by Parliament. Institutional reform, specifically, is not so much a problem for Armenia, since Armenia’s institutions are actually quite well-developed. The concern is filling these institutions with competent bureaucratic operatives, and more importantly, changing the culture and value-system of these institutions. Thus, contextually, Armenia’s institutions do not so much need structural reforms, but rather, substantive reforms and rigorous oversight.
The fourth and final preference for a transitional justice program for Armenia remains criminal accountability. The current government, as a possible precedent, has done a fairly good job in drawing a distinction between economic crime and gross violation of the law, which primarily pertain to abuse of power and authority and instances where citizens were killed. Thus, criminal accountability as an extension of transitional justice will primarily target those who engaged in gross violations of the law, and while those who abused their power and authority may be offered amnesty under truth-commission, the scope of amnesty would obviously be determined by the magnitude of the criminal behavior and the extent of the violations. In this context, criminal accountability under a transitional justice program will primarily target former officials that either used government instruments to grossly violate human rights, are responsible for the deaths of Armenian citizens, or abused their office and authority for self-enrichment (and again, the magnitude of self-enrichment would determine the scope of punishment).
In determining the legal consistency of a transitional justice program and gauging its compatibility with both Armenia’s Constitution as well as its obligations with international norms, as a member of the Council of Europe, Armenia can and will, to a very large extent, rely on the European Commission for Democracy Through Law, more commonly known as the Venice Commission. Armenia’s previous government, when formulating the new Constitution as it was transitioning to a parliamentary system, relied extensively and substantively on the Venice Commission. The objective of the Venice Commission is to assist states in aligning their legal and institutional structures with European standards as it pertains to democracy, human rights, and the rule of law. The Venice Commission, for example, was quite active in providing guidance, legal expertise, and corrective assistance to Georgia as it sought to develop a transitional justice program. In this context, learning from the mistakes of Georgia, and having exposure to the general contours and principles of the Venice Commission, the Pashinyan Administration can very easily and effectively work with the Commission in developing a transitional justice program for Armenia. Further, from a legitimacy perspective, strict adherence to the guidance from the Venice Commission will allow the Pashinyan Administration two things: first, have substantive basis that the transitional justice program is consistent with Armenia’s constitutional statutes and law, since the formation of the program will not simply be a one-sided project by the government, but rather, a broadly-coordinated project with Europe; and second, criticism from members of the previous regime, for example, will easily be negated, since the previous regime has already accepted the legitimacy of the Venice Commission through its previous consultative work with Armenia’s legal and constitutional reforms. To this end, if and when concerns arise concerning the instruments and policies of the transitional justice program, the Pashinyan Administration will have a neutral and respected organization to point to as a legitimating force.
Why are Members and Loyalists of the Previous Regimes so Terrified of Transitional Justice?
Manipulation and violation of the judiciary’s independence was one of the cornerstones through which Armenia’s previous administrations both ruled the country as well as sustained any legal challenges to their extra-legal activities. More specifically, past administrations functioned as patronal structures with informal networks, having absorbed most of the judicial system as an extension of such networks. For this reason, Armenia’s judiciary has never experienced, perhaps in the last 100 years, any judicial independence: whether under Soviet communism (judges were deemed secondary to prosecutors), or post-independence, where judges have been instruments of the executive branch, from the Ter-Petrossian administration, to the Kocharyan administration, to the Sargsyan administration.
Within this context, considering the lack of institutional independence, there are inherent structural and infrastructural deficiencies both within the judicial system as well as the competence and performance capabilities of judges. Accustomed to taking orders, most judges lack the rigorous legal experience required of an independent judiciary. Just as importantly, since the judicial branch, aside from lacking independence, was also perhaps one of the most, if not the most, corrupt institution within the government of post-Soviet Armenia, the entrenched powers of the previous regimes hold a great deal of sway over current judges. Meaning, considering the murky and questionable legal decisions of most judges—for example, it is nearly impossible to find a single ruling by a judge that opposed the government or the executive branch or a powerful oligarch in the last 30 years—these individuals either corroborated with the previous regimes, or were co-opted through corruption. In this context, there is a great degree of leverage that operatives and members of the previous regimes hold over many of these judges.
Considering they coexisted and functioned together in a state of dependence for the last 20 or 30 years, many of these judges, simply put, have a healthy number of the proverbial skeletons in their closets. This makes them extraordinarily vulnerable to being able to conduct objective and legally-consistent trials when members of the previous regimes are tried in their courts. There remains, fundamentally, an inherent conflict between the given judge’s self-interest of not being exposed or leveraged and his/her current duties: a compromised judge cannot cogently and safely undertake his/her duties.
The underlying logic of transitional justice, then, alleviates this problem; instead of, for example, having to remove most of the judges in the country, which would be tantamount to gutting the entire system and having institutional failure, important cases where possible issues of conflict of interest or previous collaborations and issues of leverage may be probable, neutral instruments of transitional justice may be utilized. This both insulates current judges from accusations of politicization or being tools of the previous regime, as well as securing the independence and objectiveness of the process itself.
The relative hysteria of the operatives of the previous regimes, then, is in direct relation to such developments. As the current judicial system stands, such individuals feel far more secure in not having to face accountability for their past acts of legal, financial, and political transgressions; but within a transparent transitional justice structure, they would not have the leverages of their entrenched powers as they might otherwise have with judges that have been compromised or co-opted by the previous patronal system. It is this fear of objective and rigorous application of the law, by neutral, unbiased legal structures that terrifies the kleptocrats and loyalists of the previous regimes. Their powerlessness gives was to impotence: instruments of transitional justice not only marginalize, but also decapitate the ability of such actors to manipulate, indirectly coerce, or in any extra-legal way have an effect upon the legal process.
Possible Complications and Issues for the Current Government to Consider
Formulating the compatibility of transitional justice with Armenia's laws and constitutional statutes should not be problematic, since these can easily be developed in a fashion that exclude contradictions, and furthermore, attains approval by a highly-respected third party, such as the Venice Commission. The Pashinyan government, nonetheless, must go out of its way to make certain that the formation and development of any element of the instruments of transitional justice are fundamentally impartial, profoundly non-politicized, and unequivocally objective. The slightest interpretive consideration of bias, from both a legal and political perspective, must be neutralized. This would, inherently, not only legitimate the process and the eventual outcome, but also form broad-based consensus on the validity of the entire endeavor.
The other issue, and one that is highly political, remains the public expectation of punishment against those who misused and abused their authorities in implementing, in general terms, a suppressive political system that primarily benefited their own informal networks. Intertwining this with the March 1 events, there is a broader demand by Armenian society not only for justice against the operatives and agents of the previous regimes, but rather, harsh punishment. In this context, transitional justice is not so much about punishing as it is about transparency, fair resolution, healing, and settling of unresolved issues of justice. As such, the government may not meet the expectations of its constituency if the proverbial crimes are not met with the sufficient or expected punishments. In this case, the government may come off as soft or weak; or further, give impetus to the ever conspiratorial sectors of society that the entire process of transitional justice was to let the past transgressors off lightly, hence hinting at backdoor dealings, lack of transparency, and the traditional distrust of government.
Collectively, then, the government needs to be cognizant of the need to balance the legitimacy of the legal process with the expectations of the public with the outcome of the process. This is why the Pashinyan Administration must begin developing a mechanism of national dialogue, addressing expectations, educating the broader public, and thus establishing the societal foundations for the development of a transitional justice program. The biggest misstep the Administration can make is to unwillingly trap itself between the attacks of the previous regimes and the harsh expectations of its constituency. The Administration must navigate between tempering and mediating the expectations of its constituency, while outmaneuvering the RPA’s opposition to the transitional justice program. This delicate balancing game remains, politically, quite crucial: if the Pashianyan Administration finds itself in the impossible position of, on the one hand, meeting the demands of its constituency to deliver harsh justice and, on the other end, dealing with accusations of political persecution, then this would be a waste of political capital in trying to maneuver out of a lose-lose situation. To bypass this probable trap, the Administration needs to pre-empt both sides, thus, placating its constituency, while outwitting its opponents.