Negative Emotions and Transitional Justice

By Mihaela Mihai

Vehement resentment and indignation are rife in societies emerging from dictatorship or civil conflict. How should institutions deal with these emotions? Arguing for the need to recognize and constructively engage negative public emotions, Mihaela Mihai contributes theoretically to the growing field of transitional justice. Drawing on an extensive philosophical literature and case studies of democratic transitions in South Africa, South America, and Eastern Europe, her book rescues negative emotions from their bad reputation and highlights the obstacles and the opportunities such emotions create for democracy. By valorizing negative emotions, either through the judicial review of transitional justice bills or the criminal trials of victimizers, institutions realize the value of equal respect and concern for all while contributing to a public culture hospitable to democracy.

• Language: English
• Publisher: Columbia University Press
• Release date: Mar 22, 2016
• ISBN: 9780231541183

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Negative Emotions and Transitional Justice

Negative Emotions and Transitional Justice

Mihaela Mihai

COLUMBIA UNIVERSITY PRESS

NEW YORK

Columbia University Press

Publishers Since 1893

New York   Chichester, West Sussex

cup.columbia.edu

Copyright © 2016 Columbia University Press

All rights reserved

E-ISBN 978-0-231-54118-3

Library of Congress Cataloging-in-Publication Data

Mihai, Mihaela, author.

Negative emotions and transitional justice / Mihaela Mihai.

pages   cm.

Includes bibliographical references and index.

ISBN 978-0-231-17650-7 (cloth : alk. paper) — ISBN 978-0-231-54118-3 (e-book)

1. Transitional justice. 2. Political crimes and offenses. I. Title.

K5250.M54   2016

340'.115—dc23

2015018087

A Columbia University Press E-book.

CUP would be pleased to hear about your reading experience with this e-book at [e-mail].

COVER DESIGN: Archie Ferguson

References to websites (URLs) were accurate at the time of writing.

Neither the author nor Columbia University Press is responsible for URLs that may have expired or changed since the manuscript was prepared.

To my family and friends

CONTENTS

Acknowledgments

Introduction: The Problem

1. Transitional Justice: Optional or Imperative?

Overcoming the Truth Versus Justice Dilemma

Stability Versus Justice: Another False Dilemma

Democratic Shifts and the Emotional Circumstances of Justice

The Exemplarity of Institutional Normative Consistency

2. Theorizing Resentment and Indignation

Liberal Democratic Accounts of the Sense of Justice and Their Limits

A Weak Constructionist View of Emotional Socialization

Constituting and Regulating Resentment and Indignation

The Sources of the Sense of Justice

3. Enabling Emotional Responsibility I: Judicial Review of Transitional Justice Legislation

Judicial Review and the Shaping of a Democratic Emotional Culture

The Limits of Law as Integrity

Judicial Review and the Exemplarity of Oriented Reflective Judgment

Reflective Judgment in Context I: Judicial Review of Transitional Justice Bills

4. Enabling Emotional Responsibility II: Criminal Trials in Democratic Transitions

Legal Didactics: Doing Justice to the Representation of Atrocity

The Instrumentality of Legalism

Criminal Trials and Legal Pedagogy: Toward Democratic Solidarity

Reflective Judgment in Context II: Transitional Justice and Criminal Trials

Conclusions

Notes

Bibliography

Index

ACKNOWLEDGMENTS

Many debts have been incurred during the process of preparing this book for publication. At the University of Toronto, Simone Chambers, David Dyzenhaus, Joseph Heath, Melissa Williams, Rebecca Kingston, and Ryan Balot generously read and commented on the first version of this project. The members of the Political Theory Group in Toronto offered precious suggestions on various chapters. I thank Margaret Haderer, Rinku Lamba, Alex Livingston, Inder Marwah, James McKee, Leah Soroko, Jakeet Singh, and Serdar Tekin for their careful reading and unwavering friendship. My former colleagues at the Centre for Social Studies, University of Coimbra and at the Centre for Research in Ethics, the University of Montreal offered helpful feedback and intellectual companionship. In particular, I would like to mention Cecília MacDowell Santos, Daniel Weinstock, Silvia Rodríguez Maeso, António Sousa Ribeiro, Ana Cordeiro Santos, Jõao Rodrigues, Júlia Garraio, Laura Centemeri, and Michele Grigolo. Jõao Rosas and the fantastic group of political theorists at the Centre for Humanistic Studies in Minho provided an excellent forum for testing ideas. At the University of York I had the opportunity to work with a brilliant group of scholars who helped me navigate the difficult process of seeing the book in print. Mónica Brito-Vieira, Werner Bonefeld, Matthew Festenstein, Matt Matravers, Martin O’Neill, Angie Pepper, Tom O’Shea, and Tim Stanton are the members of an enviable community of political theorists, and I thank them for their generosity. Alice MacLachlan carefully read the entire manuscript, and her questions gave me many reasons to reflect; I thank her warmly for that. The anonymous reviewers of this manuscript provided useful ideas for revision. Alicia Partnoy and Tamas Dezso kindly let me use their excellent work for my epigraph and cover. Wendy Lochner and Christine Dunbar at Columbia are exemplars of tactful professionalism. Susan Pensak did a wonderful job at copyediting my text. Last but not least, I am grateful to the Mihais and the Thalers for their blind trust and affection. Particular thanks are owed to Mathias for his illuminating suggestions on the text, his endless patience and steadfast support. The book benefited from the support of the Europeace Research Council (637709). The usual disclaimers apply.

Earlier versions of some parts of the introduction, chapter 1, and chapter 2 were published in Transitional Justice and the Quest for Democracy: A Contribution to a Political Theory of Democratic Transformations, Ratio Juris 23, no. 2 (2010): 183–204. Parts of the theoretical discussion in chapter 4 appeared in Socializing Negative Emotions: Transitional Criminal Trials in the Service of Democracy, Oxford Journal of Legal Studies 31 (Spring 2011): 111–31. The discussion of the Argentine escrache in chapter 3 is expanded in Denouncing Historical ‘Misfortunes’: From Passive Injustice to Reflective Spectatorship, Political Theory 42 (2014): 443–67. Parts of the analysis of Alessandro Ferrara’s work were published in When the State Says ‘Sorry’: State Apologies as Exemplary Political Judgments, Journal of Political Philosophy 21, no 2 (2013): 200–20. A preliminary version of the Argentine case study has been published in Public Negative Emotions and the Judicial Review of Transitional Justice Bills: Lessons from Three Contexts, Papeles del Centro de Estudios sobre la Identidad Colectiva 60 (2010): 1–29. The first sketch of the Romanian case was published in Portuguese in Julgamentos penais em períodos de transição e o desafio das emoções: histórias de dois países, Revista Crítica de Ciências Sociais 88 (2010): 155–84 (http://rccs.revues.org/1728).

INTRODUCTION

The Problem

Where there was torture, there are walking, wounded victims. Where there were killings, wholesale massacres, there are often witnesses to the carnage, and family members too terrified to fully grieve. Where there were persons disappeared, kidnapped by government forces without a trace, there are loved ones desperate for information. Where there were years of unspoken pain and enforced silence, there are often a pervasive, debilitating fear and, when the repression ends, a need to slowly learn to trust the government, the police and the armed forces, and to gain confidence in the freedom to speak and mourn properly.

—Priscilla Hayner, Unspeakable Truths

Dwelling in the frozen space of inability and incapacity is unacceptable, unresponsive to the victims, unavailing to the waiting future.

—Martha Minow, Between Vengeance and Forgiveness

To forget would not only be dangerous but offensive; to forget the dead would be akin to killing them a second time.

—Elie Wiesel, Night

A Day of Rage marked the beginning of the end for Hosni Mubarak’s twenty-nine years of dictatorial rule over Egypt. We are so furious. We must have change, better chances to work, to buy a flat and have just the life’s basics, one citizen told the BBC reporter following the mass protests and the violent clashes in January 2011.¹ The economic and political frustration with the regime mobilized the Egyptian population across the country in a struggle that culminated in the dictator’s resignation on February 11, 2011. Yet victory came at a cost: hundreds of protesters were killed and thousands injured by the forces of the regime.² Victims’ grieving families returned to Tahrir Square day after day in an effort to exert pressure on the authorities to bring the perpetrators to justice. In May 2011, three days after a large demonstration called for the trial and conviction of Hosni Mubarak, it was announced that the dictator, together with his sons and a few senior aides, would stand trial in an ordinary court of law for the killing of protesters. Two other charges of corruption were added to the list.

On August 3, 2011, the trial began in a climate of emotional effervescence, both inside and outside the courtroom. Outraged protesters clashed with loyal supporters of the former regime. Inside, confusion and chaos loomed over the proceedings headed by Judge Ahmed Refaat. The victims’ representatives, human rights organizations, journalists, and the public at large questioned chief judge’s impartiality. His decision to abruptly close the trial on January 2, 2012, was particularly criticized, especially because lawyers still had pending requests to hear additional witnesses and access new evidence. In addition, the trial was marked by a large number of omissions. The defendants were charged with complicity in premeditated murder, but no mention was made of the direct perpetrators of these murders. The abuses committed during Mubarak’s twenty-nine years as Egypt’s ruler were not covered by the trial. The prosecutor had been appointed by the dictator himself and continued to do his job after the regime change. Throughout the trial he presented summaries of documents, not the originals. Some of the testimonies by key officials under Mubarak’s direct command were heard in secret and were never made officially public by the court. Moreover, most of the evidence at the Ministry of Interior had been mysteriously destroyed. After the first sessions, the video cameras were removed from the courtroom, supposedly to ensure public order. Observers also noted that the trial was unfolding at too rapid a pace given its complexity. Last but not least, delegates of human rights organizations who wanted to monitor the proceedings had problems getting access to the court.³ All this made the trial look rather suspicious to the Egyptian population and the international community.

The entire duration of the trial was punctuated by angry street protests, yet the greatest unrest came after the verdict and sentence were delivered. Mubarak and his interior minister, Habib al-Adl, were sentenced to life imprisonment for failing to prevent the killing of protesters during the Egyptian Revolution. The dictator and his sons were cleared of the corruption charges, and so were the other six officials tried at the same time.⁴ Anger erupted in the courtroom where lawyers representing the victim’s families asked for the cleansing of the judiciary, declaring that God’s verdict is execution.⁵ As the details of the ruling made their way into the streets, disappointed protesters clashed with the supporters of the dictator. Approximately ten thousand people gathered again in Tahrir Square, chanting: A farce, a farce, this trial is a farce and The people want the execution of the murderer.⁶ While human rights organizations declared that the trial had been largely correct, only the head of the abusive system had been removed, in a maneuver that looked too much like scapegoatism. The fact that the system had remained almost intact and that the major figures had been acquitted fueled the public’s fury against the repressive apparatus. The possibility of reversal on appeal did not help dissipate the generalized indignation and distrust in the judiciary’s capacity to bring justice to a traumatized society. The survivors’ and their families’ worst fears became reality when, in November 2014, Mubarak was acquitted of the killings of protesters in 2011. Two thousand people gathered in Tahrir Square, angry at the decision. Ramadan Ahmed, whose son was killed in Alexandria at the beginning of the Arab Spring, declared, There is no justice for the poor. This is Mubarak’s law.⁷ The small protest was quelled with tear gas—a discouraging end to the short democratic spring in Egypt.

The Egyptian case illustrates an important dilemma that societies coming out of political oppression have to face. On the one hand, victims’ resentment toward against their persecutors constitute legitimate reactions to the experience of injustice and require institutional recognition. Moreover, they mobilize citizens to fight against impunity, often in ways that are not conducive to the entrenchment of democratic norms. Institutionally imposed silence is seldom, if ever, a lasting solution. Therefore, it is crucial to give due recognition to these legitimate emotions, but always in a way that does not violate the rights of the accused, i.e., in a way that does not smack of legally sanctioned revenge. On the other hand, this task is incredibly difficult under the volatile circumstances of a democratic transition. First, perpetrators are often protected by institutions and laws they have themselves put into place. Second, where the balance of power is fragile and narratives about the past divisive, the danger of renewed violence weighs heavily on political decision making. Perpetrators themselves are resentful for having lost the grip on state power and threaten to destabilize institutions. For this reason, concerns about stability and peace are often given priority at the expense of substantive, meaningful justice claims.⁸

This book focuses on the problem of institutionally recognising and engaging public emotional responses to oppression and violence within the framework of transitional justice processes. Against their representation as irrational, destabilizing passions, I argue that resentment and indignation towards perpetrators of violations are legitimate reactions to the experience of injustice. Should institutions ignore or aim to suppress public anger, victimization and the insult it implies would be reproduced in time. What is more, the usefulness of these feelings as signals of alarm about legitimacy deficits would be wasted. Left unvindicated, negative emotions can either threaten stability or degenerate into political apathy and cynicism. By drawing attention to one of the less theorized dimensions of democratic transitions, that of citizens’ politically relevant emotions, I hope to inspire novel ways of thinking about institutional engagements with a painful past of violence and oppression. The kind of normative burdens, but also the political opportunities, that emotional mobilization creates for institutions will be examined with an eye to offering a theoretical contribution to an already rich literature on transitional justice.

While the focus of the book lies with survivors’ and their families’ emotional reactions, I will also touch upon public expressions of emotion by victimizers, their political supporters, and the wider public. More often than not, ousted leaders are resentful at having lost political power, while their supporters are indignant at political changes they perceive as unjust. The broader public of bystanders often fail to become indignant at grave violations of human rights, thus contributing to a situation of normalized impunity. This book touches upon these phenomena in a way that highlights their impact on the democratic quality of a society’s public culture. Theoretically, it attempts to provide guidelines for distinguishing between democratically appropriate and democratically inappropriate expressions of emotion by various parties in the wake of dramatic political transformations. Empirically, it illustrates the conflictual interplay of opposing emotional responses in the wake of violence and the role that institutions can play in productively orienting emotional energies in support of democracy.

Transitional justice covers an extensive area of research, quite heterogeneous in its focus and methodology. The label refers to institutional processes of dealing with a past of state-sponsored oppression and violence and is rather unsatisfactory,⁹ for it implies a clear temporal delimitation of the transition from authoritarianism or civil war to democracy. Such thresholds are difficult—if not impossible—to identify.¹⁰ Political scientists’ efforts to determine the moment when democracy has become the only game in town inherently rely on arbitrary measurements, misrepresenting the complexity of democratization processes.¹¹ In addition, while democracy is sought as the end result of such transformations, its prospects are more remote in some contexts than in others. In war-torn societies, the immediate concern of domestic elites and their international aides is a stable peace. The transition to a democratic regime is an important concern, but not as urgent as stopping the bloodshed. Those who study transitional contexts often consider postconflict justice to be a more appropriate label for the processes of accountability and reconciliation chosen in the aftermath of traumatic violence.¹² Due to the high currency of the term in the literature, this book will continue to use transitional justice in order to reach its audience. However, in parallel, I introduce terms like postviolence justice to refer to the mechanisms societies use in order to come to terms with a violent past during the transition to some form of democracy.

The most frequently used mechanisms for dealing with the past are criminal prosecutions, lustration, truth (and reconciliation) commissions, reparations, memorials, and exhumations.¹³ Some rather recent international and domestic developments have brought these mechanisms, their failures and their successes, into the academic spotlight.¹⁴ Wider media scrutiny of state-sponsored atrocities all over the world, the increased number of nongovernmental organizations monitoring human right abuses, last century’s developments in international human rights law,¹⁵ the establishment of international and hybrid criminal courts,¹⁶ as well as changes in the nature of waging war have focused scholars’ attention on the choices polities need to make in the aftermath of major suffering and oppression. In the last few decades, the literature on transitional justice has developed as an independent and specialized field of research. Political scientists, historians, sociologists, psychologists, activists, philosophers, and especially lawyers have been working toward a better understanding of the main problems that societies coming out of authoritarianism or civil conflict have to face.¹⁷

Transitional justice concerns are not entirely new. While some authors claim they go all the way back to ancient Athens,¹⁸ most analysts start by looking at the accountability mechanisms used in the aftermath of the First and Second World Wars.¹⁹ Irrespective of where one stands with regard to the historical development of transitional justice practices, a number of resilient normative and practical questions have troubled new political elites, lawyers, human rights activists, academics, and the public at large: What should be done with a recent history full of victims, perpetrators, secretly buried bodies, pervasive fear, and official denial? Should this past be exhumed, preserved, acknowledged, apologized for? How can a nation of enemies be reunited, former opponents reconciled, in the context of such a violent history and often bitter, festering wounds? What should be done with hundreds or thousands of perpetrators still walking free? And how can a new government prevent such atrocities from being perpetrated in the future?²⁰ Theoretically, the multitude of aspects that decision makers have to take into account can be subsumed under two programmatic questions. The first question postauthoritarian or postconflict societies have to answer is: Should there be any transitional justice at all, or should we rather forget about the past and move forward? This is a question that requires us to provide reasons why the past should, or should not, be ignored. If the answer is positive, then the issue of distributing justice—the second query—arises: How should we distribute transitional justice? More precisely, we must provide an account of the various institutional forms the engagement with the past can take: trials, truth commissions, reparations, restitution, memorials, exhumations, apologies, etc. In addition, the ways in which particular mechanisms should dispense justice—with respect to victims, victimizers, beneficiaries of violence, and bystanders—need to be explored. Who gets compensation and how much; who gets to testify, when, where, and how; who gets prosecuted, when, where, and how; who gets punished, for how long, and in what way; whose bones are exhumed; who apologizes and to whom—these are all questions related to the distribution of transitional justice.

This book attempts to address both issues—justification and distribution—in a way that pays attention to the emotional circumstances of justice in transition.²¹ By bringing together insights from a wide variety of literatures and disciplines, I seek to propose a fresh perspective on both the normative weight and the prudential desirability of justice measures in the wake of atrocity.

The first part of the book deals with the problem of justification and puts forth a defense of the necessity to initiate transitional justice processes. My position is constructed in response to the skeptics who place special emphasis on the divisiveness and destabilizing forces resulting from the engagement with the past. Postoppression contexts are marked by strong public outrage and outbursts of resentment and indignation. Therefore justice processes will only provide a venue for an encounter of hatreds, thus endangering the stability and consolidation of democracy, the skeptics claim. Democratization cannot progress if we do not bury the past: societies must focus their energies on the construction of institutions and laws, not on the chimera of addressing past evils.

Against this position, this book formulates two arguments. The first argument is normative. The emotional reactions that skeptics fear will be conceptualized as markers of an evaluative capacity to recognize injustice. Resentment is a reaction triggered by injustice committed against oneself, while indignation results from witnessing injustice against another. Because of their association with displeasure and discomfort, these reactions are usually called negative emotions. As evaluative emotions, i.e., as emotions that presuppose a moral judgment, they bear normative weight and qualify as legitimate objects of concern for any democratic order. Given that it is constitutional democracies, or societies aspiring to embrace constitutional democracy, that have historically promoted or engaged in transitional justice, the end goal—constitutional democracy—sets the parameters of the process, that is, of the transition. Therefore, should a polity make the transition to democracy without opening a discussion about the legacies of the past and without taking the victims’ emotional responses seriously, its normative integrity would be endangered. In other words, one cannot proclaim equal concern for all citizens and at the same time silence some for the sake of stability. Transitional justice can, at most, be postponed for prudential considerations, but cannot be dismissed without violating core democratic values.

The second argument in favor of dealing with past conflict highlights the potential positive implications of the normative argument. I argue that it is important to take into consideration not only the dangers but also the opportunities that negative emotions create for democracy. Taking the past seriously and engaging publicly with citizens’ politically relevant emotional responses represents a first opportunity for institutions to embark on a process of democratic emotional socialization. Not all emotions are politically relevant, and I do not propose to offer here a list of emotions that would qualify as such. It seems uncontroversial to argue that resentment and indignation in response to perceived injustices bear political significance in an aspiring democracy. This book argues that such negative emotions are part of the political culture of any society and that they make the object of norms of emotional appropriateness. The targets of these emotions, the intensity thereof, as well as the actions they motivate constitute essential objects of concern for any democratic regime. I argue that, though there are no guarantees of success, transitional justice projects offer an important opportunity to stimulate reflection on what democratically appropriate resentment and indignation would look like. This book argues that the institutions involved in transitional justice should strive for clear, exemplary decisions that provide victims and victimizers, as well as the wider publics, with a justification and an explanation of what a commitment to constitutional democracy requires of both institutions and citizens in the wake of political violence. Such decisions should simultaneously give voice to all parties, acknowledge legitimate forms of resentment and indignation, and point to the ways that they can be expressed in a democratic society. That is to say, institutional processes must be set up for the purpose of rectifying injustice without undermining either the stability or the normative integrity of the young democratic regime. Whether or not their example will be taken up depends on a variety of factors that will be explored in the analysis of the case studies. Yet the contingency of success should not make institutional agents weary of trying to recuperate and tap the democratic potential of negative emotion.

These two arguments presuppose that institutions can differentiate between legitimate and illegitimate manifestations of public outrage. There are legitimate and illegitimate targets of negative emotions, just as there are legitimate and illegitimate forms of manifesting it publicly. Our outraged sense of justice can be misguided—oversensitive, lacking proof or solid arguments, or pushing us to perpetuate cycles of violence. Perpetrators themselves can be resentful for having been deposed from the seat of power. Indignant observers might turn out to be dangerous fanatics. Given that constitutional democracy is the goal of the transition, legitimate negative emotions must be based on a correct assessment of the injustices suffered. Self-righteous, unduly moralizing, and disproportional responses—responses that deny the perpetrators their own equal moral personhood—are not democratically appropriate. Emotions that incite to further violence or that seek to scapegoat are additional examples of the kind of emotion that is incompatible with democratic principles. While negative emotions can be powerful forces of social change, they can also serve undemocratic purposes. However, if motivated by a concern with what is owed to everyone as an equal member of the political community and expressed in ways that do not push societies further down a spiral of abuse, they can stimulate important debates and catalyze institutional redress. The only way to validate and filter legitimate emotion is to allow everyone to voice their concerns and bring evidence within safe institutional fora under the protection of the principle of equal concern and respect for all. In such fora individuals and groups can learn—or remember—how to take responsibility for their resentment and indignation and embrace democratic norms of social interaction. As I will show later on, courts should provide the kind of space that is propitious for publicly distinguishing legitimate from illegitimate emotional responses.

The second part of the book will deal