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Vetting and Transitional JusticeExecutive SummaryPablo de Greiff
Despite the long history of vetting, the practice remains largely understudied in regard to the potential and limitations of vetting measures, basic questions about implementation, and questions about the justification and the ends of vetting. The focus here is on the latter, on the aims and ends of vetting and how they relate to a holistic definition of transitional justice. The chapter defends an understanding of vetting that emphasizes its preventive aims (and de-emphasizes both the punitive and the deterrent justifications) and seeks to clarify the relationship between vetting and other transitional justice measures by examining the potential of vetting as an enabling condition, and, at a more conceptual level, by examining its potential to foster the trust of citizens in the institutions of the state. Vetting and ImpunityVetting refers to processes for assessing the integrity of individuals to determine their suitability for continued or prospective public employment. Purges and massive, summary dismissals are not included in this definition of vetting, because they are based not on the assessment on individual behavior (which requires individual review and procedural guarantees), but rather on membership in a group or political party. The aims of vetting are often discussed in the context of addressing the "impunity gap" faced by societies emerging from conflict or authoritarianism. In this regard, vetting can be characterized as a punitive, deterrent, and preventive measure. Each characterization should be subject to scrutiny, and is discussed in the order of increasing plausibility. As a punitive measure, vetting forces upon people the loss of job and income, and typically subjects them to shaming in the public sphere. However, punishment should not be seen as the primary reason for vetting, as losing one's job is not a feasible substitute for possible prosecutions. As a deterrent, vetting is often claimed to deter further abuses by public officials, but this claim is extremely difficult to support in any empirical way. When discussed as a preventive measure, vetting has the most merit. Rather than focusing on the possible reactions of individuals to particular measures, this claim operates at a more structural level: the purpose is not to send signals to individuals, but to disable structures within which individuals carried out criminal acts. Vetting as an Enabling ConditionWhen trying to situate the aims and process of vetting within the larger transitional justice context, there are several important caveats that should be kept in mind. First, the importance of vetting should not be overstated as a decisive factor for a successful transition. There have been many successful transitions where no vetting measures have been taken, as well as transitions where vetting has been very modest or specific. Second, the relationship between vetting and other transitional justice measures depends on many factors, which include whether the different measures are deliberately designed to relate to one another and how they are sequenced. Third, when a vetting process is not implemented correctly, it can make the implementation of other justice measures more difficult; vetting may also create governance vacuums (for example, "de-Baathified" Iraq") and can lead to a possible increase in criminal activities of former members of the security forces (for example, Haiti). Fourth, it is important to remember that vetting typically only weeds out the worst elements in an institution, leaving plenty of "undesirables" in place. It is still possible, however, that vetting may facilitate the application of measures such as criminal prosecutions, truth telling, reparations for victims, and other forms of institutional reform. That is, vetting may be thought of as an "enabling condition" of other transitional justice measures. Local human rights NGOs in Morocco, for example, have claimed that the lack of cooperation with the recent truth commission on the part of some sectors of the security forces can be explained by the continued presence of officials who should have been vetted. Thus, the absence of vetting made truth telling more difficult, and, the claim is, by contrast, that the commission would have been more effective in its truth-telling function if, as is likely had these officials been vetted, it could have accessed these institutions' archives and have had more unhindered access to other members who would then have been willing to give testimony. Similarly, it is not far fetched to think that there are instances in which vetting may facilitate criminal prosecutions. In Argentina, for instance, the prosecutorial efforts started by President Raúl Alfonsín-which led to the trials of the junta leaders-came to a halt in that country after a series of coup attempts. Had some of the military officers been vetted, perhaps it would have been more difficult for them to organize the uprisings. The relationship between vetting and reparations is more complicated, but here again similar conclusions may be reached, if through a more indirect path. To the extent that reparations are a form of recognition of state responsibility, those who are responsible for the abuses are likely to oppose the establishment of reparations programs. Thus, vetting those responsible for the abuses may weaken one of the sources of resistance to reparations. Finally, it is reasonable to think that vetting may also facilitate the broader sorts of institutional reform measures that are often called for in the aftermath of conflict and in transitions to democracy. The argument again is that vetting may weaken sources of opposition and resistance to reform. This is not far fetched regarding, for example, the restructuring, downsizing, and rationalization of security forces; predictably, this will be easier to accomplish once entrenched interests in maintaining the status quo have been dislodged from positions of power. Vetting and a Holistic Concept of Transitional JusticeThere is a compelling conceptual argument to think of vetting as part of a holistic transitional justice policy. Despite the fact that each of the measures that form such a policy-criminal prosecutions, truth telling, reparations, and institution reform-has its own specific goals, they all share two mediate goals: to provide recognition to victims and foster civic trust. Linking these two mediate goals is their complex relationship as both conditions and consequences of justice. This is what makes the different measures part of a holistic conception of transitional justice. Vetting as a Trust-Inducing MeasureIn societies emerging from conflict or authoritarianism, vetting may have trust-inducing consequences. This is important for several reasons which I elaborate after a brief description of a norm-based account of trust. These reasons include that trust facilitates social interactions and that there is a strong connection between trust and justice. Trust, far from resembling a sort of "mechanical reliability," involves an expectation of a shared normative commitment: I trust someone when I have reasons to expect a certain pattern of behavior from her, and those reasons include not just her consistent past behavior, but also the expectation that among her reasons for action is the commitment to the norms and values we share. The term "civic" in "civic trust" is a limiting qualifier. The sense of trust at issue here is not the thick form of trust characteristic of relations between intimates, but rather "civic" trust, which I take to be the sort of disposition that can develop among citizens who are strangers to one another, and who are members of the same community only in the sense in which they are fellow members of the same political community. Despite its thinness, some form of civic trust is crucial for large-scale social interactions. This is most obvious in the domain of economics. Weak networks of trust severely limit the range of options of action available to economic agents. An environment characterized by mistrust is one that requires agents to make large investments in information, monitoring, and sanctioning. The opportunity costs of such investments may be large enough by themselves to put more than a dent in economic productivity. There is no reason to believe that these effects of the lack of trust are confined to the economic sphere. Indeed, in the sphere of democratic politics, in which gathering information about what others are doing, monitoring their activities, and relying on sanctions become not simply "expensive" but may undermine both the legitimate means and ends of democracy, the absence of trust is particularly pernicious. Given democratic constraints, it is especially true that interpersonal trust is essential to the cooperation with strangers that is a prerequisite for large-scale political organization on which modern democracies are based. Let us now return to the argument that civic trust is at one and the same time a condition and a consequence of achieving justice through a legal system. There are myriad ways in which a legal system relies on the trust of citizens. At the broadest level, a legal system works only on the basis of citizens' generalized norm-compliance. In other words, the legal system can cope with norm-breaking behavior only when it is exceptional. This means that most social interactions are not directly mediated by law, but rather, at some level, by trust between citizens. Closer to home, however, all legal systems rely not just on the trust that citizens have towards one another but on the trust that they have in the systems themselves. On the other hand, it is not just that legal systems rely upon the trust of citizens both among one another and in the system itself; legal systems, when they operate well, also catalyze trust, once again both among citizens themselves and in the system itself. Trusting an institution amounts to knowing that its constitutive rules, values, and norms are shared by its members or participants and that they regard them as binding. The argument that I am interested in exploring is that well-designed vetting measures can be trust inducing, that they can promote trust in institutions. The norm-based account of trust suggests that the continued presence of known violators in the ranks of the police and other security forces, for example, betrays a lack of commitment to rules that is not just on the part of the perpetrators, but rather a broader, systemic problem. The institution is distrusted for having employee retention "policies" that keep these people in their jobs; for having a culture of cronyism which protects perpetrators from being sanctioned; for having weak oversight structures; for having a lack of commitment to the prevention of the recurrence of abuses, etc. If trust is plausibly accounted for in terms of commitment to norms, given the generality of the relevant norms, it is easy to see how breaching them impacts on the trustworthiness not only of the rule breaker, but of the institution of which she or he is a member. Conversely, vetting those responsible for human rights abusers signals seriousness and commitment that goes beyond issues of personnel selection alone. The general point is that although vetting should properly be seen as part and in need of a broader array of institutional reform tools, and as an instrument that concerns mainly personnel, choices about the latter can be, with good reason, taken to reflect institutional commitments to norms. "Re-peopling" abusive institutions with new faces (and, of course, under reliable and transparent procedures), then, is not a bad indication of whether basic norms have acquired the requisite sense to make institutions trustworthy. This is important in its own terms, but also as a contribution to, and a consequence of, the application of soundly designed, holistically conceived transitional justice measures. Click here for the full text of this chapter as it appears in Justice as Prevention: Vetting Public Employees in Transitional Societies, ed. Alexander Mayer-Rieckh and Pablo de Greiff (New York: Social Science Research Council, 2007).
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