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’.

Transitional justice as a discipline has several decades of experience to draw on to inform and shape its practices. This track record underpins the analysis in this section of several post-transition societies, identifying particular factors that may have been key in triggering shifts from transition-era settlements towards fuller post-transitional accountability.

The authors in this section share the premise that the achievement of ‘posttransitional justice’ requires that citizens perceive the justice processes as legitimate. They explain that this legitimacy can be achieved through demanding ‘accountability’ for politically motivated human rights abuses and through pursuing truth recovery processes. The authors review experiences of pursuing accountability for ‘the crimes of the past’ in the post-transitional societies of Latin America, Central-Eastern Europe and South Africa – highlighting the different trajectories that have led them to reconsider transitional justice processes long after the transition has ‘officially’ ended.

This commentary highlights the most compelling and contentious elements of each chapter, then turns to offering a critical perspective on the overarching theme of accountability explored in this section. Against the background of these chapters, this commentary argues that accountability understood as a willingness to accept responsibility for one's actions and to be answerable for them describes a quality of being that holds out hopeful possibilities for the realisation of a society that demonstrates a communal commitment to respect for the law and a sense of confidence in the possibility of justice. It hints at the possibility of people being able to develop ‘a democratic conception of justice which is both compassionate and principled and makes the best sense of both the past and the constitutional vision for the future.’ This vision articulated by Justice Kate O’Regan of the South African Constitutional Court provides a more substantial definition of the content of a fuller, post-transitional accountability – a richer expression of what justice as a societal value might provide.

In the context of Latin America, Cath Collins notes that the justice system initially played a limited role in addressing historical crimes as the region emerged from military dictatorships. This was because debates in the region have historically been framed as choices between democracy and justice. It has consequently taken some forty years to address de facto or de jure impunity of perpetrators of political violence in these countries.

INTRODUCTION

Recent decades have seen a gradual shift in international criminal law towards greater victim recognition and centrality, which in many respects parallels the rise of victims’ rights and restorative justice (RJ) in Western national criminal justice systems. Since the start of the twenty-first century the UN has issued Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters (adopted under resolution 2002/12) and, in 2006, the UN Handbook on Restorative Justice. We are witnessing the appearance of RJ-styled objectives – whether implicitly or explicitly – in a number of UN resolutions and international instruments (e.g., the 200 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (the 2006 Basic Principles) and the Rome Statute of the International Criminal Court (the Rome Statue)). There has also been an increasing focus on RJ in the academic and jurisprudential discourse surrounding international criminal tribunals, courts and transitional justice more generally. The growing prominence of RJ within this context – and in particular the introduction of material and symbolic reparations – flows, to some extent, from the recognition that ‘justice,’ in response to crimes against humanity, requires more than the myopic application of traditional (often Western-styled) paradigms of retributive and deterrent justice. It must instead encompass forms of justice (embracing notions such as truth, reconciliation, and reparation) aimed not only at punishing offenders, but also healing victims and repairing communities in which the social fabric, as well as the economic and physical infrastructure has, in many cases, been torn apart.

The growing prominence of RJ in international criminal law and transitional justice has coincided with increasing regret expressed by many criminologists and criminal justice practitioners at the reluctance of legislators and policy makers in domestic criminal justice settings to recommend RJ for anything but quotidian categories of crime. However, while RJ has been kept largely within the shallow end of domestic criminal justice, criminologists have, by and large, failed to engage with the challenges posed to RJ from crimes against humanity.

INTRODUCTION

Sierra Leone was one of the first post-conflict countries to simultaneously employ amnesty, prosecutions, truth-finding and reconciliation initiatives, and more recently reparations, in the framework of transitional justice. The question is whether there remains a transitional justice gap in Sierra Leone and, if so, whether there is a need to fill it and how tradition-based justice can contribute. Traditional culture still plays an important, though contested, role in rural Sierra Leone, as acknowledged in the mandate and the report of the Truth and Reconciliation Commission (TRC). This chapter assesses the role of traditionbased justice in ongoing justice and reconciliation initiatives and the challenges to its use.

The chapter situates itself in the ongoing debate on the localisation of transitional justice: moving away from one-size-fits-all solutions and externally imposed models, the current transitional justice landscape presents a variety of mechanisms and tools, which are supposed to complement each other. Along this spectrum, local mechanisms to deal with past crimes have come to the fore in recent years. These may include traditional conflict resolution mechanisms, i.e. ‘non-state justice systems which have existed, although not without change, since pre-colonial times and are generally found in rural areas’. Other mechanisms have shifted further away from traditional practices but are inspired by underlying traditional values, in which case I prefer to call them tradition-based. Both traditional and tradition-based mechanisms are part of the broader group of local justice mechanisms, ranging from informal to formalised, some of which can even be entirely new or modern. In this definition, I suggest, ‘local’ does not necessarily refer to their applicability in a limited geographic area, but rather to the origins of the mechanisms, stemming from a bottom-up approach as opposed to external imposition.

This chapter first assesses whether key goals of transitional justice – accountability, truth-finding, reparations and reconciliation – have been met by the mechanisms enacted in Sierra Leone. To ascertain whether there is a transitional justice gap, the outcomes of the transitional justice mechanisms are compared to the findings of research, including my own, concerning perceptions on the ground of dealing with the past. In this regard the popular saying ‘we forgive and forget’ will be analysed and compared to what is needed to obtain ‘a cool heart’. Examples are given of ongoing initiatives to assess whether traditionbased justice mechanisms can fill the gap.

INTRODUCTION

The question of forgiveness in politics has attained a certain cachet. Indeed, in the fifty years since Hannah Arendt commented on the notable absence of forgiveness in the political tradition, a vast and multidisciplinary literature on the politics of apology, forgiveness, and reconciliation has emerged. A number of historical events can account for this sudden turn: the efforts of former Soviet Bloc countries to acknowledge state spying and other infractions on the rights of their citizens; the establishment of truth commissions in Argentina, Uruguay, Chile (among others) to investigate state-sanctioned disappearances, kidnappings and tortures; and, perhaps most famously, the work of the Truth and Reconciliation Commission (TRC) in South Africa. At the same time, there have been gestures by parties to World War II on both sides of the conflict to apologize and repair for various war crimes and infractions, and settler societies like Canada, the USA, and Australia have been called to task for past injustices by various members of their own citizenry: indigenous peoples, the descendants of former slaves, linguistic and ethnic minorities, and immigrant groups who have suffered from discrimination and exploitation.

Analyses of these new politics typically touch on the potential role for a political notion of forgiveness, although few have provided a detailed or consistent theoretical explanation of what would make an act of forgiveness political, and what distinguishes political forgiveness from its more familiar counterparts in everyday life. Instead, this task has fallen to philosophers, and they have embraced it with no small degree of cynicism. To a novice scouring the relevant literatures, it might appear that the only discordant note in this new veritable symphony of writings on political forgiveness has been sounded by philosophers writing on the topic. Where others see new hope for politics, philosophers fear an uncritical promotion of forgiveness, which risks distorting and cheapening forgiveness as a moral ideal, on the one hand, and ignoring justice, accountability, and the need to end harmful relationships, on the other. After all, when philosophers take up the question of forgiveness, it is usually in order to shape it into something resembling a rationally defensible moral ideal.

In the wake of initiatives by Nelson Mandela and Archbishop Desmond Tutu, there was a surge of interest in the idea that forgiveness could play a constructive role in political life and help to prevent cycles of violence. Of late, there has been considerable skepticism about that notion, with some even suspecting Tutu of boosterism about the notion of forgiveness. The grounds for that skepticism are important to consider and set the theme for this book. I do not claim to address all relevant arguments against the notion of public forgiveness; rather, I will attempt here to counter major logical and ethical objections. I argue that there is a viable concept of public forgiveness, one that is defensible in the context of fundamental philosophical criticisms. Although public forgiveness may be difficult to achieve, I believe that it is worth seeking and should not be dismissed as theoretically ill-founded or practically impossible.

The topic of public forgiveness has been of interest mainly due to its connection with another topic, that of reconciliation between groups and individuals alienated in the aftermath of bitter conflict or repression. Reconciliation requires the establishment of social trust between previously opposed factions – enough social trust so that they can cooperate as needed to coexist in a decent society. This account of reconciliation in terms of trust is not a minimalist account, based simply on coexistence without violence. Rather, it requires the development of attitudes facilitating cooperation between former enemies. Nor is it a maximalist account: it does not require warm emotion, apologies and tears of remorse – but instead enough social trust and good will for formerly alienated people to function together within social institutions. Wilhelm Verwoerd and I argued for such an account in a 2002 paper on trust and national reconciliation and I developed it further in my book, Taking Wrong Seriously, published in 2006.

For the purposes of this discussion, I define forgiveness as follows:

Forgiveness requires:

• a. The overcoming of resentment and bad feelings towards a person or persons believed to have accountably committed serious wrongs in the past;

• b. The re-framing or shift in attitude toward such persons so as to regard them as capable of engaging in decent relationships in the present and future;

• c. The setting of the wrongful deeds in the past.

INTRODUCTION

November 2009 saw the commemoration of the twentieth anniversary of the notorious massacre of six Jesuits, their housekeeper, Elba Ramos, and her daughter, Celia, at the University of Central America. March of 2000 commemorated the thirtieth anniversary of the assassination of Archbishop Oscar Romero and the following December marked the kidnapping, rape, and murder of the four American churchwomen – Maura Clarke, Ita Ford, Dorothy Kazel and Jean Donovan. Such commemorations are important for the world, but they are especially important in El Salvador because of the way in which memories of injustice have been systematically denied and repressed. All of these figures were deeply committed to peace in El Salvador, but they insisted that the way to attain authentic peace is through justice. Their lives were rooted in a Catholic Christian faith and enlivened by the Second Vatican Council, according to which the church is most herself when she walks in solidarity with the poor and advocates policies to end structural injustice.

Thirty years after Romero's martyrdom, we are now in the age of “transitional justice” in which the language of reconciliation has come to play an increasingly important role in our moral lexicon. This is particularly true of Christian ethics, especially after the public successes of the South African Truth and Reconciliation Commission and its charismatic chair, Archbishop Desmond Tutu. The international acclaim of the TRC (not always articulated as loudly in South Africa itself) sometimes tempts us to forget that the language of reconciliation was employed in El Salvador, as well as in Chile and Argentina, well before the South African experiment was conceived. Yet human rights activists in Latin America often suspect that appeals to reconciliation amount to a subtle attempt to evade accountability. Nowhere is this more the case than in El Salvador, whose history from colonialism to the present has been pervaded by impunity.

The church promotes mercy, forgiveness, and reconciliation as primary expressions of the virtue of charity, the grace inspired love of God and neighbor. Christian contributions to transitional justice around the world have often focused on reconciliation.

INTRODUCTION

Over the last decades the notions of forgiveness and reconciliation have increasingly been expressed in the public sphere in many countries. There is a pervasive trend towards public apologies, forms of national introspection and public appeals to grant forgiveness.

Archbishop Tutu's motto that “there is no future without forgiveness” is well known. He has argued that forgiveness is the only way to liberate oneself from the prison of past animosity and rancour. Partly due to Tutu's efforts, the South African Truth and Reconciliation Commission (TRC) has become an important model and source of inspiration for many other countries that want to deal with their past grievances and internal conflicts. For others, however, to speak of forgiveness in politics is inappropriate and risky. What is more unforgivable than the atrocities of the powerful? Forgiveness is seldom a servant of justice, some claim.

The opposition between proponents and opponents of public forgiveness raises conceptual, philosophical, empirical and practical questions: What does ‘forgiveness’ mean, how does speaking in terms of ‘forgiveness’ function, and under what conditions can it foster transitional justice processes?

Section 2 will start with some philosophical questions regarding the meaning of ‘public forgiveness’ and we will relate these to questions about the conditions under which the oratory of public forgiveness does occur. We will elaborate two positions, one labelled ‘minimalist’, in section 3, and the other ‘maximalist’, in section 4. In section 5 we will discuss the notion of ‘invitational forgiveness’ and the question whether a forgiving attitude is a necessary aspect of mitigating a confrontational social climate. In section 6 we will pay attention to some cultural and religious contexts in which public forgiveness may occur. Which conditions do promote or impede that process?

WHAT IS PUBLIC FORGIVENESS?

Philosopher Trudy Govier stated: “Some find the notion of forgiveness in politics naïve to the point of absurdity.” An extension of the use of forgiveness to the public realm does indeed evoke many questions. What exactly is “forgiveness”? Do we have to distinguish between different kinds of forgiveness? To what extent is it bound to “face-to-face” relationship between individuals? Under what conditions can people grant forgiveness or ask for it?