Theorizing Transitional Justice

Claudio Corradetti, Nir Eisikovits

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317010869
• Edition: 1
• Topic: Jura
• Subtopic: Rechtswissenschaft

This book addresses the theoretical underpinnings of the field of transitional justice, something that has hitherto been lacking both in study and practice. With the common goal of clarifying some of the theoretical profiles of transitional justice strategies, the study is organized along crucial intersections evaluating aspects connected to the genealogy, the nature, the scope and the most appropriate methodology for the study of transitional justice. The chapters also take up normative and political considerations pertaining to specific transitional instruments such as war crime tribunals, truth commissions, administrative purges, reparations, and historical commissions. Bringing together some of the most original writings from established experts as well as from promising young scholars in the field, the collection will be an essential resource for researchers, academics and policy-makers in Law, Philosophy, Politics, and Sociology.

PART I
Is it Always Necessary to Account For Past Wrongs?

Chapter 1
Forgetting after War: A Qualified Defense

Jack Volpe Rotondi and Nir Eisikovits

Remembering: An Article of Faith

Milan Kundera’s The Book of Laughter and Forgetting begins with a description of two communist party leaders, Gottwald and Clementis, standing next to each other on a porch in Prague. Gottwald is about to give a speech. It is winter and he does not have a hat. Clementis takes off his own hat and gives it to his comrade. A few years later, Clementis falls out of favor and is accused of treason. He is removed from official photographs. All that remains of him is the hat on Gottwald’s head. “The struggle of man against power is the struggle of memory against forgetting,” comments Mirek, Kundera’s protagonist.¹

The discipline of transitional justice focuses on the question of how nations can best own up to a past of political violence: once the killing subsides, what does it take for parties to account for their old crimes and make a transition to civil society? What are the institutional ways of dealing with the past? What are the legal, moral, and political problems involved in the operation of bodies such as truth commissions, war crime tribunals, or lustration panels? How is their efficacy to be assessed? What role should indigenous practices have in the design of transitional policies? And what about reparations? Who should pay? Who should receive the payments? What counts as payment in the first place? There is much disagreement about these questions. However, one thing the scholars and practitioners of transitional justice do agree about is that the past must be dealt with. We might call this “the memory assumption.” With Mirek, they assume that forgetting, not dealing with the past, or, to paraphrase Cambodia’s Prime Minister Hun Sen, digging a hole and burying the past, is toxic.² Such suppression, we are told, is an act of brute force. It solves nothing. It merely exacerbates injustice, fuels a culture of impunity, and creates a reservoir of unprocessed resentment on the part of victims and their families, always bubbling close to the surface, ready to explode at the first instance of political unrest.

This chapter takes up the question of forgetting after war. While acknowledging the powerful rationale for robust policies of transitional justice it will argue that remembering cannot be an article of faith. We will try to make a limited and qualified case for forgetting, or at least raise some questions about the axiomatic nature of the “memory assumption.” First, however, let us briefly explore the case for that assumption.

The Case for Remembering

At least as far back as John Locke’s famous account of personal identity in “An Essay Concerning Human Understanding,” modern Western political thought has been committed to the view that memory is central to our ability to perceive ourselves, as ourselves, through time. Our memories are constitutive of who we are and, as a result, it is crucial to have others listen to (and, ideally, acknowledge and reflect) our understanding of our past. Having our history suppressed, destroyed, or hidden amounts to severe violence against the core of our identity.³

In his essay “Superseding Historical Injustice,” Jeremy Waldron makes one of the most compelling contemporary cases for the importance of memory in the face of historical injustice. He offers three reasons why we must, institutionally and otherwise, strive to memorialize what we have done to others and what they have done to us.⁴ First, “our moral understanding of the past is often a way of bringing to imaginative life the full implications of principles to which we are already in theory committed.”⁵ Remembering allows us to take our moral principles seriously as it gives us a particular historical context to think about how they apply in practice. Rational but abstract moral “principles” are insufficient; a contextual sensibility which maps current “circumstances and entanglements” to representative past “temptations” is essential for living, breathing people to “face moral danger.”⁶

Waldron then goes on to illuminate the relationship between “identity and contingency,” suggesting that, “[w]hat happened might have been otherwise, and, just because of that, it is not something one can reason back to if what actually took place has been forgotten or concealed.”⁷ Quite simply, if the past is not remembered, there is no way of rationally reconstructing it on the basis of counterfactual reasoning. Once it is gone, it is gone. Deduction yields nothing about how Jews acted in the Warsaw ghetto, the participation of women in the Rwandan genocide or Native American ideas of property in the fifteenth century.

Finally, Waldron explains how forgetting can be implicated in the creation and perpetuation of unjust social relations:

When we are told to let bygones be bygones, we need to bear in mind also that the forgetfulness urged on us is seldom the blank slate of historical oblivion. Thinking quickly fills up the vacuum with plausible tales of self-satisfaction, on the one side, and self-deprecation on the other. Those who as a matter of fact benefited from their ancestors’ injustice will persuade themselves readily enough that their good fortune is due to the virtue of their race, while the descendants of their victims may too easily accept the story that they and their kind were always good for nothing. In the face of all this, only the deliberate enterprise of recollection (the enterprise we call “history”), coupled with the most determined sense that there is a difference between what happened and what we would like to think happened, can sustain the moral and cultural reality of self and community.⁸

In other words, a refusal to remember can create stereotypes and structures of subjugation. Without the benefit of history, those who find themselves disadvantaged lack the context to make sense of their predicament and may come to see it as reflective of some innate deficiency. Conversely, those who find themselves on top may justify their fortunes by making reference to ahistorical abstractions and fantasies about “manifest destiny” or “natural right.”⁹

Transitional justice scholars make the case for remembering after war in more concrete terms. We must, they insist, account for historical injustices because burying the past is a profound injustice to victims and because forgetting oppression perpetuates a culture of impunity. Martha Minow, in Between Vengeance and Forgiveness, ascribes the “most appalling goal” to the perpetrators of twentieth century atrocity: “the destruction of the remembrance of individuals as well as of their lives and dignity.”¹⁰ Intentional regime-sponsored forgetting as well as flawed transitional justice efforts have adversely affected discrete and very real human lives. Nir Eisikovits describes one such case in his Sympathizing with the Enemy. Forgetting, he writes:

compounds the suffering of individuals by forcing them to watch their tormentors walk around freely, reenter politics, or maintain their posts in public service and the military. All of this takes place while their painful memories and traumas remain unacknowledged. Amanda Pike, a reporter for PBS’ Frontline, tells a story which starkly demonstrates the cost of forgetfulness for individual victims. During a trip through the Cambodian province of Pailin, Pike came across Samrith Phum, whose husband was executed by the Khmer Rouge. Phum knows the murderer well. He is her neighbor and he operates a noodle shop across the street from her house. He was never arrested and never charged with her husband’s murder. There is no procedure through which he can be sued for damages. Phum must simply get used to the idea that her husband’s killer quietly manages his store next door.¹¹

Transitional justice writers also share a broad consensus that some form of accountability helps nurture budding non-authoritarian institutions. In other words, forcing perpetrators of past human rights abuses to face their crimes allows a new democracy to start off on the right foot—such accounting conveys the message that from now on human lives are once again valuable enough to receive the law’s attention—and this, in the transition from an authoritarian regime that did not display such respect—is a very important message to be sending.

Is Forgetting Ever Admissible?

To what extent do the philosophical and practical arguments sketched above support the strong presumption in favor of historical remembering? Are there cases where the possibility of not addressing the past needs to be taken more seriously? There are two ways of approaching these questions. The first is to undermine the rationale for remembering presented above. The second, more tentative and modest approach, is to identify some cases in which there is an argument for not remembering. We shall pursue the second strategy. While we think there are strong grounds for the memory assumption, it is important to avoid turning it into a dogma. Our concern is that much of the recent literature treats it as such. We propose to look at three cases in which the memory assumption is problematic: conflicts with significant cultural variance on the question of how best to deal with the past; conflicts where there is a complicated division of guilt between the parties; and political situations where an insistence on commemoration and thorough accountability risks reigniting the conflict.

In selecting these categories we draw on the work of Priscilla Hayner. In her canonical work on truth commissions, Unspeakable Truths: Confronting State Terror and Atrocity, Hayner outlines four components which “would account for this lack of desire to formally establish the truth.”¹² The first involves “fear of negative consequences.”¹³ She defines this as “a perception that violence would increase, war could return, or that the current violence or war would not end, if old crimes were revisited.”¹⁴ Hayner’s second and third categories are, respectively, lack of political interest (“little or no interest by the political leadership in truth-seeking and a lack of significant nongovernmental actors pushing them to do so”) and other urgent priorities (including “extensive destruction resulting from the war or violence, widespread popular sentiment to focus on survival and rebuilding, and a lack of basic institutional structures that could support a truth-seeking process.”)¹⁵ Hayner’s fourth and final category addresses “alternative mechanisms or preferences” and focuses on cultural variance about remembering.¹⁶ She describes this as “indigenous national characteristics [which] may make truth-seeking unnecessary or undesirable, such as unofficial community-based mechanisms that respond to the recent violence or a culture that eschews confronting conflict directly.”¹⁷

Hayner’s first and fourth categories are important and useful. In what follows we expand on them and try to offer at least the beginning of a philosophical argument for the legitimacy of using them. To these we add the category of cases with a complicated division of guilt. While Hayner considers some such cases she does not view these circumstances as creating a separate argument to forego policies of transitional justice. Hayner’s second and third categories, however, present significant problems and, as a result, cannot be included in a putative case for official forgetting. For one thing both categories raise the problem of political agreement. We shall have more to say about this in section 4, but let us provide a preview here: to justify foregoing efforts of transitional justice, there has to be a significant degree of social consensus about the lack of political interest and about the relative importance of alternative priorities. In other words, in such cases it is not enough that the political class has no interest in digging up the past (as its lack of interest may be due to the wrong reasons) or that it has decided that there are other more important things than digging up the past (again, because the priorities of the political class may be informed by problematic considerations). If these two categories are to justify foregoing efforts of transitional justice there must be substantive level of agreement about the judgments they contain. Furthermore, the employment of the category of “other urgent priorities” presupposes that coming to terms with the past and tending to other priorities are mutually exclusive efforts. Two observations are in order about this assumption. First, some ways of addressing past wrongs are more expensive than others. War crime trials and truth commissions with limited mandates cost less to operate than those with expansive authority. Commissions of historical inquiry are cheaper to run than truth commissions. And so on. In other words, efforts to come to terms with the past can be designed in a cost sensitive manner with other priorities in mind (and with the awareness that a reduced effort will probably yield less comprehensive results). More importantly, there may well be a link between a commitment to truth-telling and the ability to build sustainable and legitimate institutions (even given countervailing risks as we shall explore). If foregoing transitional justice is likely to lead to resentment on the part of those victimized by the previous regime, such sentiments would undermine or threaten the viability of the new institutions that have been designated as a more urgent priority. In this sense, efforts of transitional justice and institution or nation-building are mutually enhancing. A government wi...

Table of contents

• Cover Page
• Half Title page
• Title Page
• Copyright Page
• Contents
• List of Figures
• Notes on Contributors
• Introduction
• Part I Is it Always Necessary to Account For Past Wrongs?
• Part II Punishing after War
• Part III Transitional Justice as a Vehicle of Structural and Institutional Change
• Part IV Transitional Justice and Political Reconciliation
• Part V Transitional Justice and the Arts
• Part VI Defining the Parameters of Transitional Justice
• Part VII Case Studies
• Index