Understanding the Age of Transitional Justice: Crimes, Courts, Commissions, and Chronicling

By Nanci Adler, Vladimir Petrovic, William A. Schabas and 10 more

Since the 1980s, an array of legal and non-legal practices—labeled Transitional Justice—has been developed to support post-repressive, post-authoritarian, and post-conflict societies in dealing with their traumatic past. In Understanding the Age of Transitional Justice, the contributors analyze the processes, products, and efficacy of a number of transitional justice mechanisms and look at how genocide, mass political violence, and historical injustices are being institutionally addressed. They invite readers to speculate on what (else) the transcripts produced by these institutions tell us about the past and the present, calling attention to the influence of implicit history conveyed in the narratives that have gained an audience through international criminal tribunals, trials, and truth commissions. Nanci Adler has gathered leading specialists to scrutinize the responses to and effects of violent pasts that provide new perspectives for understanding and applying transitional justice mechanisms in an effort to stop the recycling of old repressions into new ones.  

• Language: English
• Publisher: Rutgers University Press
• Release date: Jun 22, 2018
• ISBN: 9780813597782

Book preview

JUSTICE

INTRODUCTION

On History, Historians, and Transitional Justice

NANCI ADLER

Since Nuremberg, and more pronouncedly since the move toward democratic rule in Africa and Latin America in the 1980s, there has been a rise in understanding that bad pasts need to be institutionally addressed in order to create good futures.¹ It has now become the norm that postrepressive, postconflict, postauthoritarian successor states confront—or support the process of confronting—the crimes of their predecessor repressive regimes, both for the victims and for society as a whole. We may mark such an advance in sociocultural evolution as the Age of Transitional Justice. The expectation that an array of legal and nonlegal measures will be undertaken in the aftermath of mass political crimes is intended to provide a vital course correction to recurrent cycles of violence and impunity.

Transitional justice has generated a variety of strategic and tactical approaches for redressing often irreparable harms. These have included: international criminal tribunals, national or local legal proceedings, truth commissions, restitution, the accurate revision of history, public apologies, the establishment of monuments and museums, and official commemorations. Each of these, in different ways, attempts to incorporate the lived and narrated experiences of the victims, the witnesses, and the perpetrators. Such narratives bring the crimes into a shared public domain where they can be co-processed and critically evaluated.

The outcome of the convergence of multilevel narratives produced by many people and disparate groups can result only in an approximation of the full-scale of the targeted events. Nevertheless, even as we recognize these limitations, real things happen to real people who frame them as authentic experiences. While their narrative reconstruction of events is subjected to their interpretive framework, so, too, are the assessments of judges, truth commissioners, the public, the media, and opinion-makers alike.

Twenty years after the operation of one of the most prominent truth commissions—the South African Truth and Reconciliation Commission—and, now, as the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) (both U.N. ad hoc tribunals) have wound down and closed, we are entering a new phase, one in which we are well-positioned to scrutinize the processes as well as the products of the age of transitional justice, even if only as a work in progress. Transitional justice is young in age and beset by growing pains, but we have gained some deeper understanding of the differential efficacy of transitional justice mechanisms, as well as the records they have produced. Pablo de Greiff, U.N. Special Rapporteur on truth, justice, reparation, and guarantees of non-recurrence, has found cause for celebration in the fact that in the short span of twenty to thirty years, truth-seeking and justice-seeking have consolidated their efforts and have come to include more victim and gender participation. There is, however, less to be hailed when it comes to the field’s engagement with impact issues, that is, what changes, improvements, and/or reconciliation these efforts actually brought to the affected, divided societies.² Indeed, the consequences of transitional justice mechanisms are still unfolding. We are still in the early stages of exploring post–transitional justice trajectories and identifying the impediments to progress, but two obstacles that stand out are the challenges to amnesties and to some of the U.N. and Hague courts’ rulings. We can infer that these are reliable indicators of a larger disconnect and that more obstacles await.

Early transitional justice models were designed to help reconstruct postrepressive societies—those recently liberated from repressive regimes and assumed to have thrown off their repressive culture. We were confronted, however, with the fact that removing the repressor from the society did not remove the repression from the culture. These fragile societies that are postconflict, but not postrepressive, require a strategic shift to a model more suited to those challenges.³ We are still uncertain about how to help transitional justice take root and enhance its overall credibility in the societies where the crimes took place, or those from which the perpetrators emerged. For example, countries like Liberia, previously ruled by Charles Taylor, and Serbia, previously ruled by Slobodan Milosevic, are still governed by a culture of repression so entrenched in the defendants’ homeland that The Hague courts’ rulings are flouted by many of its citizenry.⁴

This volume provides a broad perspective on current institutionalized practices for confronting genocide, mass political violence, and historical injustices. It goes beyond looking at the successes and limitations of contemporary models. It also conveys the ways these injustices were experienced by the victims and analyzes the kinds of narratives that have been accorded credibility by gaining an audience in international criminal tribunals, trials, and truth commissions, and the public space. A better understanding of these narratives could contribute to identifying the causes and consequences of repression and may inform transitional justice strategies.

ADDRESSING CULTURES OF REPRESSION

One of the systemic flaws in the early approach to transitional justice mechanisms was the expectation that achieving justice in postrepressive states would be correlated with achieving reconciliation, as it might have been if all the parties had agreed on the facts and the criteria for a just outcome, and if justice meant the same thing to different peoples. In a number of cases, these models served as a functional starting point,⁵ but failed to reconcile or sufficiently address the competing narratives of history that persist in postrepressive societies.⁶ This disconnect was not remedied by the laudable increase of victim participation in transitional justice proceedings.⁷ Indeed, repressive societies often blur the boundary between perpetrators and victims, so the increased opportunity to tell stories also gave rise to competing narratives of who was a victim.⁸ This kind of dispute matters in dealing with the legacy of repression because continued disagreement on facts and causes can marginalize victim groups, intensify rivalry, and facilitate the recycling of old repressions into new ones.

For their part, the academic and practitioner debates that have addressed the difficulties of the reconciliation process have not arrived at a solution for—or an adequate understanding of—the obstacles to reconciliation chronically regenerated by the enduring culture of repression in societies aspiring to be postrepressive.⁹ This deficit stymies efforts to deal with the hard or non-cases in which transitional justice is not on the state agenda (i.e., Russia, see figure I.1), those in which it is restricted or resisted (i.e., Serbia), or those in which it is ambivalently implemented but its achievements are undermined by divisive narratives that justify the repression of rights, which can readily lead to renewed violence (i.e., Rwanda).¹⁰

COMPETING NARRATIVES

One of the important questions that emerges when we study the products of this age of transitional justice is what kind of history is being written in the narratives recorded by judges and in the trial transcripts themselves. For example, while some Yugoslavia Tribunal judgments have contributed to the pursuit of historical accuracy regarding the causes of the conflict(s),¹¹ the legal narrative of the courtroom, in contrast to the personal narrative, is purposefully driven toward a hard-edged verdict that may tell a narrow story.¹² It is likely to be true, but it is not the whole truth. In consequence, contending parties often enter and leave the courtroom with their own truths still intact, unmodified by exposure to other narratives of how events transpired. This in no way diminishes the value of the record produced. However, transitional justice mechanisms may benefit by recognizing the obstacles to change embedded in the implicit and explicit truths conveyed by the rival narratives that roil just under the surface. Some of these truths are related to ideological convictions,¹³ others to age-old, state-sponsored xenophobia (aided and abetted by the media and by history and civics curricula). These coexisting truths,¹⁴ based on the different perceptions of different groups, provide an interpretive frame that structures and sustains their version of reality and impedes transitional justice from taking root. However, what historians might contribute to the goals of transitional justice is, in a word, AND—the hitherto insufficiently considered likelihood that a richer, more functional truth emerges when competing narratives are reframed in a conceptual shift as contributing narratives. Elazar Barkan and others have pioneered the approach of historical dialogue between groups on different sides of the political divide as a potential starting point to repair the schism of competing narratives.¹⁵

FIGURE I.1. Remembering Stalin then and now. At the end of the Soviet era, in the absence of official registration, the archives on the terror of the anti-Stalinist organization Memorial were stored in private apartments, like this one belonging to Nikita Okhotin, Moscow, 1990. (Photo [on left] by Rob Knijff.) Transitional justice was not on the post-Soviet state’s agenda. 2017 calendar for sale, Moscow, 2017. (Photo [on right] by Nanci Adler.)

An example of how confounding this problem can be is illustrated by the dueling narratives of the Serbs and Bosnians who inhabit former Yugoslavia. The central theme of Serb narratives characterizes the catastrophic war as an internal conflict, triggered from the outside, and resulting in a civil war in which Serbs were also victims.¹⁶ By contrast, the central Bosniak narrative frames these same events as unbridled Serbian aggression against them.¹⁷ Now, years after the physical battle in former Yugoslavia has ended, the divisiveness remains, perpetuated by competing narratives raging in and out of the courtroom and battling about whose version of truth is right or wrong rather than recognizing the accurate and inaccurate information in each version and potentially using this richer combination of information to head off future disputes.¹⁸ The ICTY rulings have had little influence on the perceptions and behavior of those in the affected regions. In 2012, Tomislav Nikolic, then newly-elected Serbian president, denied that the Srebrenica massacre constituted genocide, despite the rulings of both the ICTY and the International Court of Justice.¹⁹ This denial reflected his constituents’ sentiments, proclaimed an ethos of repression impervious to international criticism, and reinforced Serbia’s resistance to transitional justice.²⁰

Substantial criticisms regarding results have also been leveled against the International Criminal Tribunal for Rwanda (ICTR). Rwanda experienced colonial rule that followed and led the division of its population into antagonistic ethnic categories. Here, the suppression of individual human rights had many starting points and culminated in a one-hundred-day genocide that claimed the lives of approximately 800,000 Rwandan citizens, the overwhelming majority of whom were Tutsi. In the aftermath, several transitional justice measures were implemented. These included the ICTR, the gacaca lawn court trial (traditional dispute resolution system within communities), and national courts. As these mechanisms wound down, Rwanda could claim to have achieved widespread justice, as evidenced by a total of one million Rwandans prosecuted.²¹

At present, however, there is just one official narrative on the genocide against the Tutsis, labeled the healing truth. The ICTR has been accused of facilitating, perhaps even aiding and abetting, this outcome.²² Competing narratives have been criminalized, and any referencing of ethnicity is forbidden. The regime justifies the restrictions it has imposed on political parties, civil society, and the media as a safeguard against the resurgence of ethnic violence. Many maintain that ethnicity did not exist in precolonial Rwanda.²³ Even as the twentieth anniversary of the genocide was being commemorated in 2014, much of it was being dis-memorated, as the public discussion of this part of Rwandan history was limited to the state-sponsored narrative.²⁴ The suppression of broader, multiple points of view may undermine, rather than promote the processes of reconciliation.

LESSONS LEARNED?

These are but two of many similar examples demonstrating that the trial model is of limited success in reconciling competing narratives of the same events. Granted this limitation, tribunals excel at facilitating access to testimonies that might otherwise have been inaccessible. This alone makes the record they create an indispensable source that, like all others, must be subjected to critical scrutiny. Truth commissions, for their part, have been successful in documenting a broad range—and even competing narratives—of repression, but have not always been successful in addressing their trajectory. The privileging of truth over justice may have achieved consensus during the commission proceedings, but in their aftermath some victims and survivors have challenged the legitimacy of outcomes that allowed perpetrators to escape with impunity.²⁵ Moreover, as Molly Andrews has argued, these testimonies were not immune to being shaped by the statement-takers and givers, who influenced and even tainted the truths they produced before the commission.²⁶

FIGURE I.2. The archives of the more than 12,000 gacaca courts in Rwanda, Kigali, 2012. It was estimated that the records, which were stored in some 19,000 boxes, comprised more than an estimated 60 million pages. (Photo by Thijs Bouwknegt.)

This failure of transitional justice to meet expectations reflects several insufficiently examined assumptions regarding the cultural milieu necessary for success. Among these are: the belief that a postrepressive government is synonymous with a postrepressive culture; a conflation of truth, justice, and fairness (even by some judges, lawyers, and commissioners) that offends the commonsense judgment of victims and survivors; the belief that the truths produced by court testimony can be at all immune to the social context of the courtroom; and the belief that the repressors’ acknowledgment of a crime is more important to the aim of reconciliation than our acknowledgment of the preceding xenophobia and dehumanization of the other embedded in the crime.

Carol Gluck has observed that while addressing the past is not the province of the law, international tribunals have significantly facilitated the disclosure and transmission of narratives of past repression. The themes and plots of these stories, the emotions they express, and their value as authentic sources, along with the pruning of these testimonies by the judicial process, influence the prospects for reconciliation in the affected societies.²⁷

Stories are accounts of what happened. They overlap with explanations but are not the same, so trying to account for people’s behavior by listening to their testimonies provides only one part of the tale. We have no single narrative of the past that can well explain why good people can so readily commit evil acts collectively, or why previously good neighbors turn against each other. We need to identify and analyze which history is being remembered by whom, and consider whether there can be, as U.N. Special Rapporteur on cultural rights Farida Shaheed, has termed it, a multi-voiced narrative of the past²⁸ that might contribute to a shared narrative of the past.²⁹ Such a history might facilitate an understanding of what conditions triggered the violence, how propaganda perpetuated them, as Richard Wilson has extensively researched, and what allowed some people to resist the repression. The opening of governmental records and state archives would be an essential component of this process, because, in the words of Kate Doyle of the National Security Archive, Never Again can start only by answering the question, Never again what?³⁰ And that what should include the preliminary conditions that led to the malevolent events. Furthermore, since a repressive past influences the present sense of justice and injustice, it is worth considering, as does William Schabas in this volume, whether the pursuit of truth should have any temporal limitations.

OVERVIEW

The contributors to this volume scrutinize transitional justice processes from a variety of theoretical perspectives and consider some of the endemic issues that thwart postrepressive societies, victims, transitional justice practitioners, judges, and historians. They examine how institutionalized, global transitional justice processes and practices interact with bottom-up, local perceptions of justice, and they reflect on how some victims feel empowered and others, alienated by the variety of outcomes ranging from sentencing through restitution, and acquittals.

This volume is divided into three parts, each examining an overarching set of issues. Part I addresses The Complex Relationship between Truth and Justice and opens with the entry of historians into the courtroom in Vladimir Petrović’s Swinging the Pendulum: Fin-de-Siècle Historians in the Courts. In his analysis of the continuously negotiated partnership between history and law, he traces the role of historians in the courts, along with the role of history itself in legal proceedings. Petrović looks at how the use of historians as expert witnesses emerged and evolved, and poses the question of whether historians are properly suited and vetted to justify their increasing role as forensic contributors to international criminal tribunals. He recognizes that even long after actual battles end, many historians remain entrenched in historiographical battles regarding their causes and consequences. Using several case studies, Petrović examines the significant contributions of historians to the undoing of the miscarriage of justice. Finally, he scrutinizes the complex relationship between history and law—two major contributors to the outcome of transitional justice.

In his essay, Time, Justice, and Human Rights: Statutory Limitation on the Right to Truth? William Schabas explores the right to truth, an issue that is gaining increasing momentum in both international human rights law and approaches to transitional justice. The twin imperatives of investigating atrocities and holding perpetrators accountable are part and parcel of the right to justice. Accordingly, Schabas calls our attention to the prevailing judicial reluctance to look too far into the past. Examining the right to truth and the passage of time, Schabas reminds us of chronologically past, but culturally present events such as Katyn (the long-denied and later marginalized1940 massacre of thousands of Polish officers by Stalin’s NKVD in a forest near Smolensk, Russia), the Spanish Civil War, and the Armenian genocide. He points out that the European Court of Human Rights seemed to be employing a statutory limitation in its reluctance to deal with the latter case because a century had passed. In fact, such limitation is prohibited for atrocity crimes.

In examining this and other cases, Schabas reflects on whether the right to truth should have temporal limitations and embeds this important question in related discussions on the rights to justice and to reparations for victims. Here, Schabas seems to find common ground with Carol Gluck’s observation that addressing the past is not the province of the law, by asking that we consider whether the search for the historical truth might not be better suited for nonjudicial institutions.

In his chapter, How Truth Recovery Can Benefit from a Conditional Amnesty, Jeremy Sarkin explores another aspect of the right to truth. He examines the South African conditional amnesty process for lessons that can be learned for other processes in which amnesty could be given in exchange for the truth. He points out that the truth revealed in transitional justice processes is often limited, because truth commissions rely largely on victim testimonies.

Sarkin argues that adding the perpetrators’ carefully scrutinized testimony regarding motive and performance would provide a more complete understanding. For example, such testimony could inform us of the claimed causes of violence, the command structures, who was empowered to give the proximal orders, whence came the higher orders, and what the connections were between security officials and government personnel. This testimony, in turn, could facilitate our understanding of when and how states and individuals decide to perpetrate human rights violations. Sarkin promotes the benefits of conditional amnesty to enhance truth recovery, but cautions that its efficacy is dependent on the perpetrators’ perceived need for amnesty—that is, their belief that without it, they would run the real risk of prosecution.

The final contribution to this section emphasizes methodology. Stephan Parmentier, Mina Rauschenbach, and Maarten van Craen describe New Epistemologies for Confronting International Crimes: Developing the Information, Dialogue, and Process (IDP) Approach to Transitional Justice. The authors found that there was general agreement in both the public and private spheres that the past must be acknowledged by establishing the truth. However, the question of how to establish the truth has been contentious. A major reason for this contention is the coexistence of many truths, along with what their adherents and opponents would accept as credible methods of verification. To this end, the authors draw on several types of empirical research and quantitative surveys that they have designed to collect data on the attitudes, opinions, and expectations of populations affected by mass atrocities.

Their survey aimed at understanding the extent to which establishing the truth was important to the respondents, and then by which means and processes they felt this should happen. The authors attempt to circumvent the biases created when transitional justice is managed by national or international elites by focussing their attention on local populations—an approach they label research from below. This has yielded insights into various strategies and mechanisms the respondents employed for dealing with the crimes of the past. The authors assert that quantitative surveys can provide an additional source of information on a range of transitional justice questions, including the victimization of persons during and after violent conflicts. They include specific issues related to postconflict justice, such as truth-seeking, offender accountability, victim reparations, and reconciliation. They further claim that the nonadversarial act of asking a person for information constitutes a specific form of acknowledgment of his or her victimhood, even if that person may also belong to the group of offenders. Their approach supports the proposition that the act of facilitating a dialogue with a victim to gather information is validating and thus makes a contribution to transitional justice.

Part II of this volume, The Narrative of the Trial Record addresses the kind of information that is revealed by the legal processes transitional justice employs. In his examination of court transcripts in The Spark for Genocide? Propaganda and Historical Narratives at International Criminal Tribunals, Richard Wilson looks at how international courts from Nuremberg to the International Criminal Court have shaped our views of the origins and causes of mass atrocities. The common thread running through the historical narratives the courts produce is the instigating role political propaganda plays in fomenting popular participation in mass crimes. This is the explanation favored by judges to account for why neighbours turn against their neighbours, and Wilson argues that it has come to assume an outsized role in legal histories.

Thus, even as Wilson describes how propaganda became one of the overarching narratives employed by international courts and expert witnesses to explain atrocities perpetrated during armed conflicts, he encourages scepticism by noting the paucity of empirical evidence to support this claim. Wilson’s examination of courtroom history as a site of contestation between legal actors pursuing legal outcomes draws our attention to the fundamental question regarding the kind of histories international courts produce.

Furthering this discussion in The International Criminal Trial Record as Historical Source, Thijs Bouwknegt looks at the legacy of the Special Court for Sierra Leone and the International Criminal Tribunal for Rwanda. He evaluates the courts’ claims that they facilitate justice through their judicious use of extra-legal powers such as serving victims with closure, ending protracted wars, reconciling fractured societies, and writing historical records. He focuses on the latter claim and addresses the problems associated with the court record when Western models of justice are superimposed upon non-Western cultures.

Bouwknegt, like Wilson, grapples with the question of how to position court judgments in the larger historiography of mass violence. He argues that trials are more focussed on affirming theories than ascertaining truth and points to where some of the difficulties lie. Among the impediments that hobble most tribunals is the shortage of documentary, forensic, and other forms of tangible evidence. Another layer of unreliability is added for trials connected with the oral societies of sub-Saharan Africa, where judges have to rely almost exlusively on eye- and ear-witness accounts of events that occurred five, ten, and even twenty years ago. Judges have recognized the questionable veracity of these testimonies that, even when honest, are merely the witnesses’ version of the truth.

And while the trial transcript is a valuable source for historical research, it is, according to Bouwknegt, only a truncated record, as it cannot convey the full realities of the trial. It cannot, for example, convey the tonal effects of the witnesses or accusers, their beseeching looks or intimidating stares, or the effect of a closing statement delivered in song. In such circumstances, historians are tasked with reaching conclusions without the benefit of the courtroom context, as well as the potentially vital evidence not used in—or deliberately excluded from—the trial record.

Part III, The Afterlife of Transitional Justice Processes, the final section of this volume, investigates some of the lingering tensions that transitional justice processes tried—and often failed—to remedy. In Narrating (In)Justice in the Form of a Reparation Claim: Bottom-Up Reflections on a Postcolonial Setting, Nicole Immler looks at the difficult, and sometimes fraught translation of transitional justice mechanisms from global to local scales. In 2011, the Dutch government was obliged to apologize and pay compensation for its repressive colonial policies during the Indonesia war of independence (1945–1949). Immler’s case study, with its focus on the court-ordered compensation granted to some of the widows of the Dutch military’s 1947 massacre in the village of Rawagede in Indonesia, brings the decolonization debate squarely into the transitional justice arena. The plaintiffs’ victory in this civil court case in The Hague set a precedent that led to the filing of additional claims against the Dutch government, including those from the victims’ children. Much research regarding the Dutch military’s human rights violations in Indonesia in those years is ongoing,³¹ and much more is on the horizon.³²

Initially, it seemed that transitional justice could mark the Rawagede ruling as a success because it had obtained acknowledgment from the repressor and reparations for the identified victims. However, as Immler explains, because local tradition required that the reparations earmarked for the widows be distributed to the whole village, the designated victims received only a small fraction of the compensation. This case illustrates some of the unanticipated complexities that arise when Western models are superimposed upon non-Western cultures. In so doing, Immler’s investigation calls attention to the need to incorporate a deeper understanding of the facts on the ground into transitional justice approaches.

Christian Axboe Nielsen’s chapter, Collective and Competitive Victimhood as Identity in the Former Yugoslavia, describes how exclusivist narratives of victimhood impede postconflict, post–transitional justice reconciliation. When a nation portrays itself in its politics, media, and academia as a victim, it seems self-evident that the burden of postconflict reconciliation should be borne by the perceived perpetrators and their descendants. This ethos of repression recycles old, competing narratives of victimhood that confound the many transitional justice initiatives that have been implemented in the region to foster agency for confronting the past.

Nielsen points to the very high concentration of repressive regimes, collective violence, and mass atrocities that characterized the former Yugoslavia between the years 1918 and 1991, only to be followed by a destructive, protracted state collapse. Each of the multiple communities that were cobbled together for most of the twentieth century has its own memory of the violent events, and each asserts its primary victimhood, ongoing suffering, and martyrdom. Nielsen reminds us that these entrenched views have reinforced the we-they divide in the region and caused resistance to the findings and rulings of the ICTY and other transitional justice mechanisms.

On the other side of the globe, in the aftermath of a genocide, postconflict Cambodian society has narrowed the we-they divide so much that nearly everyone is considered a victim. Timothy Williams’s chapter, Perpetrator-Victims: How Universal Victimhood in Cambodia Impacts Transitional Justice Measures, explores the ways in which even former cadres of the Khmer Rouge, who had implemented genocidal policies, have become categorized as victims. They are well integrated into their communities, and the chief transitional justice mechanism in Cambodia—the Extraordinary Chambers in the Courts of Cambodia (ECCC)—has largely left them alone.

As the hybrid tribunal aims at trying only the most responsible, highest leaders, the notions of mass victimhood and narrow perpetrator responsibility have taken even stronger hold in societal perceptions. The narrative of universal victimhood is further reinforced in memorial museum exhibitions. Williams believes that this compartmentalization of responsibility has facilitated stable and harmonious community relations in a society where former victims and former perpetrators often live side by side. He cautions, however, that by universalizing victimhood and downplaying agency, potential perpetrators of violence in the future will not feel the need to take responsibility for their actions, which may in turn lead to them to the path of least resistance—namely,