INTRODUCTION

Transitional justice is an unruly arena. Born out of the tensions and uncertainties of the end of the twentieth century, it persists today with vigour and passion. But there are also profound doubts over the strength of its foundations and the durability of such an inchoate field. Transitional justice has mixed roots, resulting from the convergence of disparate movements: the forces of modernisation, economic liberalisation and democratisation in the 1970s and 1980s; the changing nature of conflict in the post Cold War era; the growth of the global human rights community; a rediscovered belief in judicial remedies to mass atrocity nearly fifty years after Nuremberg and Tokyo; and a seeming fin de siècle angst over tying up loose historical ends. Reflecting this complex genesis, transitional justice today encompasses manifold disciplines: law, politics, international relations, sociology, development studies, history, philosophy, psychology, anthropology, criminology and area studies. This diversity of influences and orientations explains the energy and vibrancy but also the immense disagreements inherent in the field. The inclusiveness of transitional justice is one of its greatest strengths but also poses important theoretical, analytical and empirical challenges.

It is these dynamics that prompt the question of whether transitional justice developed too quickly. Perhaps some scholars and practitioners got caught up in the fervour of unfolding events and the immediate interest that transitional justice generated among donors and policymakers and consequently left fundamental questions unaddressed or only partly answered: Why should ‘justice’ be ‘transitional’? Why should addressing past wrongs also contribute to future transformation? What form should justice take? Are justice processes ends in themselves or means to greater ends? Can we predict the effects justice will have? Should justice take precedence over other objectives such as stability, peace, healing, forgiveness, economic development or reconciliation? How should we define these key terms and whose definitions matter?

Such questions motivated the conference, ‘Taking Stock of Transitional Justice’, hosted by Oxford Transitional Justice Research (OTJR) at the University of Oxford in June 2009. The papers assembled in this volume were either presented at the conference or, in several cases, commissioned especially for this collection.

INTRODUCTION

From the very beginning in Eastern Europe, lustration was a controversial issue. Its opponents claim that in principle it contravenes the very concept of a democratic law-governed state: for instance, they argue that lustration is based on collective guilt, contrary to both the presumption of innocence and the principle of non-retroactivity of law. The supporters of lustration and decommunisation do not deny that it involves some retroactivity of law and departure from strict formalistic legalism. However, they claim that lustration is necessary for a substantive and robust rule of law, and for the legitimacy of the new legal system. In other words, the two sides perceive law and its function in very different ways. On the one hand, critics of lustration adopt a very narrow positivistic and legalistic concept of law; on the other, supporters of lustration adopt the view that in order to achieve the rule of law, it is sometimes necessary to go beyond narrow legality and that the social context in which legal institutions operate is crucial.

The transfer of power from communist regimes that started with Poland's first (semi-free) election of 4 June 1989 and ushered in Europe's first postcommunist government had a snowball effect in other countries. With the exception of Romania, the transfer of power was peaceful and based on agreements usually called ‘round table talks’. The Western liberal world praised this type of transfer of power as a model for a liberal and constitutional state. Twenty years later, the societies in question are deeply divided in opinion about the present and the future.

Why is this? A substantial number of citizens and observers of the affairs of the region claim that remnants of the past, dealing unsatisfactorily with legacies from the former regimes, are responsible for the contemporary state of affairs. It is not the aim of this chapter to confirm or falsify such claims, but in order to consider the contemporary state of affairs in the democratic law-governed states, as the post-communist regimes call themselves, it is necessary to focus on the extremely complicated problem of the relations among legality, the rule of law, institution-building and dealing with the past in the process of transition from communism over these twenty years. In this chapter I will describe legal strategies adopted in particular countries in their attempt to deal with one controversial element of dealing with the past.

INTRODUCTION

Achieving justice and societal reconciliation in the aftermath of prolonged civil war is an improbable task for which there are no ready solutions. In northern Uganda, a region wracked by decades of fighting between the Government of Uganda and the Lord's Resistance Army (LRA), the quest for justice and reconciliation has been both passionate and elusive.

Conflict theorists frequently describe reconciliation as a part of any comprehensive peace process, but in most cases the various dimensions of rebuilding or restoring relations are described as goals to be pursued after the fighting has ended. However, a striking aspect of the discourse about reconciliation in northern Uganda is the extent to which Ugandans have called for reconciliation even before a peace agreement was developed. This has been true of local NGOs that emerged to address the consequences of war, certain elected officials, and some Ugandan academics.

The language of reconciliation in turn figured prominently in the ‘Agreement on Accountability and Reconciliation’ that was reached at the Juba peace talks (2006–2008) by negotiators for the Ugandan government and the LRA. In this document, the negotiators agreed that ‘collective and individual acts and processes of reconciliation shall be promoted at all levels.’ This Agreement also endorsed the use of traditional justice practices such as the Acholi mato oput as part of a framework for achieving post-conflict justice.

Another notable phenomenon in northern Uganda is that consistent calls for reconciliation have come from people who have been most affected by the violence: individuals whose family members were killed in the war, parents whose children were abducted, teachers and headmasters whose schools were disrupted. The Concerned Parents Association (CPA), for example, is the largest ‘victims’ organisation’ in the region. CPA formed in 1996 after the LRA abducted over one hundred girls from a secondary school in Aboke. It grew to include thousands of war-affected parents organized in several hundred ‘parent support groups.’ From its founding, CPA advocated for negotiations to end the war, and for reconciliation with those who had committed atrocities.

These calls for reconciliation should not be construed as reflecting a unanimous view or cultural consensus; surveys and interviews in northern Uganda reflect a large number of victimised people who favor retributive responses to the crimes committed, but the persistence of calls for reconciliation among a variety of actors, which occurred even at the height of the violence, is nevertheless striking.

INTRODUCTION

The image of a ‘Lebanon of dignity’ and of ‘a people that perseveres’ captures much of the Lebanese attitude to the ‘fire and dynamite’ they have endured. Drawing on the country's experiences of persistent wars, official responses and methods of remembering and forgetting, this chapter highlights two important avenues of investigation that should be included in the process of designing a transitional justice strategy for Lebanon.

First, I argue that an important tenet missing from the transitional justice debate in Lebanon is the dissection of the concept of ‘collective amnesia’ into a realistic analysis of the ways in which the Lebanese have both forgotten and remembered their past. Samir Khalaf is often attributed with applying this term to Lebanon, and its use has now become commonplace among sociologists, politicians, journalists and the Lebanese general populace. Even the reasons that many Lebanese have opted, both intentionally and unintentionally, for collective amnesia in the wake of violence are well documented. While silence has been cemented by official Lebanese policies and has become an integral part of a societal response to an exceptionally traumatic past, the Lebanese people have also developed varied and unusual ways to remember.

As civil society and government bodies in Lebanon turn to the question of how to deal with the past, the role of collective amnesia is increasingly scrutinised. Yet, with few exceptions, the nature and components of such a collective amnesia remain largely unexplored. This paper disaggregates the concept into nine components and uses a psychological lens to assess the possible contributions and obstacles they pose to transitional justice strategies.

Second, I argue that there is a great deal to be learnt from a psychological analysis of memory and amnesia in post-conflict Lebanon. The primary transitional justice goal for Lebanese civil society seems to be to prevent future violence, and discussions regarding possible strategies have focussed on political, economic and legal analyses.

The memory of the past is at the centre of the transitional justice project. Indeed transitional justice itself is a memory-making process, intending to right the wrongs of the past as well as to define the ways in which that past is remembered. Transitional justice endeavours seek to mobilise memories in various ways – by coming to terms with them, by acknowledging them, by neutralising their potency through holding the culpable accountable – so that they become useful tools in a present and future characterised by peace, rule of law and democracy.

However, memory is often something that refuses to be defined and confined in the ways imagined by discrete projects that seek to affect it. As those who study the politics of memory remind us:

This illusive, agential and unfixed nature of memory is often neglected in transitional justice practice and scholarship. The assumptions that the past can be uncovered, clarified, acknowledged, accounted for and overcome, and also that a coherent and agreed-upon narrative about that past is possible and will facilitate such processes, go largely unquestioned in transitional justice debates. Within the transitional justice project, memory is something to be harnessed, transformed and deployed.

The three chapters in this section question and probe these assumptions. Like other sections in this book, they push inquiry beyond the now familiar debates within transitional justice to introduce fresh questions. Instead of exploring whether to remember or to forget, these authors ask how state-sponsored approaches of remembering and forgetting affect the daily lives of those expected to engage in them. Instead of questions around victor's justice and imposed narratives, contributors explore issues of memory in situations where no clearcut victors and victims emerge.

INTRODUCTION

The idea that international sentencing might be instrumental in helping to promote reconciliation and peace in societies ravaged by war or social conflict is superficially attractive. However, beyond the political rhetoric of international relations it is difficult to visualise exactly what this might mean, except in purely abstract terms. The problem stems from the fact that perceptions of international criminal justice are relative and contextual so that it appears futile to argue that it has some kind of instrumental force having significance at both the international and local level.

However, acknowledging the relativity of justice does not render it meaningless. Accordingly, it may be argued that ability of the international sentencing process to reflect different perceptions of justice in post-conflict societies is what matters. International criminal trials should not simply validate partisan versions of truth because their decision-making processes implement particular ideologies and norms. For international criminal justice to command universal respect its legitimacy must derive from the fact that it has moral integrity in the eyes of all significant parties.

This chapter therefore takes a broad and inclusive view of the role of the trial in delivering international criminal justice. In other words, it does not simply focus on issues of individual criminal responsibility and the trial's traditional purpose of punishing those found guilty of alleged crimes. The notion of individual responsibility is patently inadequate when much of the violence is collective in nature and rooted in cultural history. Consequently, it is argued that a major focus for the trial should be to better reflect the justice expectations of both victims and communities in the practice of sentencing.

An important aspect of this, and essential to developing the trial's capacity to produce more contextually relevant sentences, is the extent to which values about punishment are shared in any particular post-conflict context. Clearly, the extent of this may vary in its intensity according to community or culture. In addition, there may be little agreement about how to achieve peace and reconciliation, or the degree to which trial justice might be expected to contribute to this.

INTRODUCTION

When justice campaigners formulate aims and expectations for post-conflict justice, criminal prosecutions of the persons responsible for human rights violations and for politically motivated crimes are often given pride of place. Criminal trials in the aftermath of violent conflict and political suppression are intended to hold individuals accountable for the injuries they inflicted on others. And often enough, trials do succeed in this ambition, at least in respect of the (often comparatively few) accused brought before the courts. There is by now a wealth of evidence that the political context of such trials notwithstanding, accused persons can be treated fairly, evidence can be found reliably, victims and witnesses can be treated with respect and punishment can send a meaningful message about the reprehensibility of the conduct of the accused. Trials and convictions also serve as markers of the accused person's responsibility for his past conduct, confirming his culpable agency.

The quest for post-conflict accountability is also rooted in a concern for democratic consolidation. Generally speaking, it is feared that, unless successor regimes make credible attempts to bring to justice those responsible for past atrocities (or at the very least those responsible for the policy decisions that led to their organised commission by lower-level perpetrators), the resulting legitimacy deficit will undermine respect for the rule of law and the political authority of the newly created (or reformed) democratic institutions, sometimes with fatal consequences for longer-term stability. Although the empirical evidence supporting these assumptions is inconclusive, worries of this kind provide a strong impetus for the ongoing international campaign against impunity. These efforts include calls on peace negotiators, supra-national institutions and third states to block, to the extent possible, attempts by affected states to allow the perpetrators of past atrocities to be shielded from prosecution and punishment by national amnesty laws. There is also considerable support for the view that domestic amnesties for international crimes constitute evidence of unwillingness on the part of the amnesty-granting state to prosecute those protected by these laws, triggering the prosecutorial competence of the ICC under the complementarity rule. Moreover, there is sometimes good reason to be suspicious of the good faith of some who mobilise against the political legitimacy of trials and advocate or even demand alternatives to them. It is not rare for such calls to originate from persons who have most to gain from leniency, and/or from their political friends.

INTRODUCTION

In his book The Unquiet Ghost: Russians Remember Stalin, Adam Hochschild writes that ‘what makes the Stalin period so riveting…is the vastness of the suffering, the strange spectacle of self-inflicted genocide.’ How societies can cope with memories of vast suffering is a question all transitional justice scholars at least implicitly ask, regardless of the particular case they study, along with how to reconcile those memories with the goals of democratic state-building. But Russia's post-communist transition is increasingly anomalous and poses a challenge to this way of thinking. The country is set apart by two alarming and simultaneous trends – authoritarian consolidation and the positive reframing of Soviet history, including the apparent rehabilitation of the dictator Stalin. Indeed, as these words are written, Moscow City Hall has decided to hang posters bearing Stalin's image throughout the city to help celebrate Victory Day – and Stalin's role in defeating the Nazis – on 9 May 2010. What is so distinct about Russians’ historical suffering that such trends have been able to develop?

Hochschild's qualification about Russians’ suffering – the idea of self-inflicted genocide – may provide the answer. Genocide, although a contested concept, assumes a clear demarcation between the victimised group and the génocidaires, who are clearly Other. How, then, could Russians have committed genocide against themselves? The key is their history of mass collaboration with the Soviet system. In practical terms, this was the case for all nationalities living in the Soviet Union, as individual survival required cooperation with the authorities. But Russians experienced a unique ideological form of collaboration, as their national identity became the most closely aligned with the Soviet identity upon which the criminal system was based.

In this chapter, I assess the implications of self-inflicted genocide for post- Soviet Russian approaches to the past and explore the relationship between these approaches and broader processes of state and nation-building. After periods of both democratisation and authoritarian consolidation, ‘transition’ in Russia has resulted not in liberal democracy but in a stable hybrid regime type. Furthermore, shifts from open confrontation with the past during glasnost to ‘forgetting’ during the 1990s have now given way to the kind of positive reframing described above, suggesting a lack of linearity in Russian memory construction in addition to its political transition.

INTRODUCTION

There are many instances in which politics reveals its ritualistic character. Inauguration ceremonies for newly elected presidents or funerals for prominent political figures may be the most obvious examples of rituals in politics. The diplomatic custom to lay down wreaths on symbolic sites during state visits also reveals the ritualistic character in our international relations. But rituals can also be identified in less obvious political fields. The signing of peace treaties by politicians in front of cameras with handshakes and public embraces can be read as symbolic ritual performance, just as the literal ‘burying of the hatchet’ in ancient times. Truth and Reconciliation Commissions can be understood, among other possibilities, as repetitive ceremonies to mark transitions or even as ceremonies to hold the past present. In the fields of transitional justice and collective memory, several instruments and policies to address past atrocities bear a ritualistic character. This chapter will depict one of these instruments that has received increasing academic attention in the last years: the political apology for mass crimes.

As a ‘symbolic form of reparation’, political apologies have been hailed as a valuable reconciliatory practice in transitional processes as well as in interstate relations strained by unresolved historic crimes. Numerous criteria for ‘good’, ‘humble’ or ‘complete,’ and in the end ‘successful,’ apologies have been elaborated in recent years. This chapter will not try to supplement the academic discourse with a more vigorous and detailed specification for the evaluation of political apologies, rather it will present a different perspective on the phenomenon of political apologies. In this chapter I will read political apologies from the perspective of ritual theory. Using this approach, I will address the same question that academics have approached from other theoretical positions, of how public apologies succeed in exerting their alleged mysterious and magical force of restoring positive social relationships. Why do some public apologies succeed while others fail?

In order to answer this question this chapter will highlight the significance of the ritualistic features in collective apologies. The critical evaluation of the existing literature will demonstrate that the predominant approaches to understanding the potential power of the apology are mainly content driven, abstract and mechanistic in prospect, and neglect the ritual quality of public apologies.

INTRODUCTION

The lifting of Martial Law in Taiwan in 1987 elicited demands for official recognition of human rights violations committed by the previous authoritarian regime of the Kuomintang (KMT). Although some efforts were made by the KMT government in response to those demands, by 2000 demands for justice were increasingly prevalent. The major criticism being voiced was that the democratic transition in Taiwan was a ‘transition without justice’. As Nai-teh Wu points out, ‘transitional justice in Taiwan was pursued only by providing reparations to the victims but without tackling the greater issues of retributive justice against the perpetrators and of historical rectification.’ For Wu, this is a lack of justice because ‘the question of who was responsible for the political repression and gross violations of human rights has seldom been posed.’

This strong demand for retributive justice in Taiwanese society was finally forged into a political project – the ‘De-Chiang Kai-shek’ movement – to impute culpability to those deemed responsible for atrocities. However, instead of satisfying these demands, this project only revealed a diversity of opinions and generated even wider debate. Some criticised the movement for failing to articulate an adequate retributive approach, dressing up as justice a primitive impulse of revenge. Others expressed concern about the whole approach of searching for retributive justice in a period of democratic transition, arguing that the emphasis on past wrongs that guides the pursuit of retribution had the potential to polarise an already divided society. They worried that it could itself become ‘a stumbling block for consolidating democracy’ in Taiwan.

The controversy aroused by this project in Taiwan echoes broader normative concerns about the necessity and legitimacy of retribution for past wrongs as a requirement for transitional justice. Some theorists, as pointed out by Ruti Teitel, claim that retribution through ‘successor trials’ plays a vital role in laying the basis for a new liberal order:

INTRODUCTION

The aim of this chapter is to discuss some legal and judicial problems generated by situations of gross violations of human rights, and to do so from the perspective of a ‘communicative’ or ‘dialogical’ approach to criminal law. I am particularly interested in showing the richness and potential of this view, rooted in a deliberative theory of democracy, for dealing with hard criminal law cases. I do so by testing the deliberative view in three real and recent hard cases. The examples that I review are those of the 1983 self-amnesty law in Argentina (a self-amnesty passed by members of that country's military junta, before handing over power to the new democratic authorities); and the Barrios Altos and Simón cases, which also involved amnesties that sought to pardon gross violations of human rights (amnesties that, in these cases, were not passed by military regimes, but rather by democratic or quasi-democratic governments). I end the chapter with a reflection on the importance and possible implications of the dialogical approach.

THEORETICAL APPROACHES

What should judges do, in the face of past violations of human rights? In recent years, we have seen the influence of two very different views regarding how to deal with these difficult situations. One of these approaches focuses on the authority that enacts the law, while the second concentrates on the process that is established for dealing with hard criminal law cases. The first view, namely legal positivism, sees judges as simply ‘strict enforcers’ of the law, and the (valid) law as the product of an authorised official. The second view, in contrast, is not concerned with the issues of authority or community that were central to the first approach. Rather, it assumes that any tribunal is authorised to intervene in cases of massive violations, as far as it respects basic requirements of procedural fairness. It may be important to say a few words about each of these views.

JUSTICE AND LEGAL POSITIVISM

On legal positivist accounts, the authority of the law derives from the fact that it is imposed from above by an authorised sovereign. One of the most common positivist views simply asserts that ‘the law is the law’ (Gesetz ist Gesetz) and has to be obeyed because it is the law.

INTRODUCTION

The study of transitional justice is usually confined to a specific type of transition: the transition from a non-democratic (conflict) state to democracy. This may reflect a greater demand for knowledge and tools to help forge and consolidate democracies, than interest in the techniques that are used to turn a democracy into an autocracy. Even concerning democratic transitions, however, general theories are scarce. Since Ruti Teitel's groundbreaking book Transitional Justice no serious attempt has been made to devise a general theory on the role of the law in democratic transitions. On the contrary, it has been argued that constructing a general theory is not feasible because, as Jon Elster argues, transitions are too diverse, or because justice in times of transition is not fundamentally different from justice in normal circumstances, and thus does not merit its own separate theory, a position defended by Eric Posner and Adrian Vermeule. This lack of theoretical or philosophical endeavour might also be connected with the fact that transitional justice is, as a distinct field of academic inquiry, relatively young (although most of its elements have been studied separately for a long time) which makes comprehensive overviews difficult.

In this chapter, I will nevertheless put forward a rudimentary theory of transitional justice that also includes non-democratic transitions. Expanding the theory of transitional justice to include all fundamental political transformations will make this discussion more general and thus more scientifically interesting and possibly more reliable. This theory will be restricted to legal justice, and therefore considers primarily legal and pseudo-legal phenomena, although these limitations are not very strict. I will discuss the following questions: What legal mechanisms are at work in transitional periods? Is there some kind of regularity, e.g. are there patterns or even laws governing the possibilities of a system of law in dealing with and bringing about a transition?

These are not normative questions, and they are therefore not dealt with in a normative fashion. Normative ideals are driving forces behind any transition, and therefore many scholars rightly scrutinize those ideals according to normative criteria, but not all theories of transitional justice must necessarily be normative. Normative policy or theory may benefit from the results of factual or analytic research of an economic, political, social or philosophical nature which signals pitfalls, incongruities, practical problems or contradictions. For this kind of research it is essential not to take sides with any particular interpretation of any particular political ideal.

INTRODUCTION

The two dominant transitional justice mechanisms that have evolved in Western discourse and practice – truth commissions and criminal trials – have been differentiated partly in terms of their respective focus on the involvement of local communities, and specifically victims of human rights violations. Truth commissions, with their emphasis on allowing victims to tell their personal stories, are contrasted with criminal trials, in which victims are rarely given a voice, except as witnesses providing prosecution testimony. The often more explicit focus on reconciliation as a goal has meant that truth commissions tend to include encounters between perpetrators and victims in public hearings or other participatory processes. As a result, they have the potential to offer ‘complete local ownership of the process of transitional justice’. Criminal trials, by contrast, while often including reconciliation in their mandates, retain their formal legal character and emphasis on a top-down process designed primarily to satisfy the demands of international justice rather than the needs and priorities of the individuals and communities affected by the violence.

This experience with international criminal justice in particular has led increasingly to disquiet and calls for change among transitional justice policymakers, theorists and practitioners. These calls come from those who see the value of participatory processes from a philosophical or theoretical perspective as well as those whose observations stem from practical experience. They mirror arguments for greater civil society participation and local ownership in development and peacebuilding. In his 2004 report on transitional justice, United Nations Secretary-General Kofi Annan called for ‘nationally led strategies of assessment and consultation carried out with the active and meaningful participation of national stakeholders’ which he defined as including ‘justice sector officials, civil society, professional associations, traditional leaders and key groups, such as women, minorities, displaced persons and refugees’. Annan went on to say that ‘civil society organizations, national legal associations, human rights groups and advocates of victims and the vulnerable must all be given a voice in these processes’.