By Francesca Tarò, 2019/20, Undergraduate Essay
Transitional justice is the exercise of justice in transforming societies in order to address past human rights abuses while reestablishing civil order (Eisikovits, 2014). It is therefore both backward and forward-looking.
This dual purpose, however noble, produces a series of at times conflicting goals (Eisikovits, 2014), such as:
- Restoring citizens trust in the government;
- Consolidating stability;
- Creating a reliable and public record of the events;
- Addressing victims’ pain and helping the healing process.
Although the systematic practice of transitional justice and the term itself are relatively modern, its practice it is ancient (Teitel, 2000), leaving us with a long list of measures to choose from when dealing with genocide and other atrocities.
The following essay will only focus on two specific measures: war crime tribunals and truth commissions. Before analyzing which effects these two approaches have on the challenges faced by governments in a politically transitioning environment, a brief description of what they consist of will be given.
The Nuremberg’s legacy: war crime tribunals
War crime tribunals are conceivably the most known measure of transitional justice thanks to the Nuremberg trials. In fact, the events concerning the Second World War and its aftermath had an enormous resonance at an international level and have been highly broadcasted through documentaries and movies.
The Nuremberg trials not only set the example for the creation of other tribunals such as the ad hoc tribunals (Eisikovits, 2014), but also shaped the concept of ‘crimes against humanity’ itself, paving the way for the creation of several human rights treaties.
The Nuremberg trials and the Military Tribunal for the Far East (1946), followed by the ad hoc International Criminal Tribunal for the former Yugoslavia ICTY (1993) and the ad hoc International Criminal Tribunal for Rwanda (1995) led to the creation of a permanent court, the International Criminal Court ICC (Wegner, 2015). It was established in The Hague by the Rome Statute in 1998, with the purpose of handling cases of war crimes and human rights abuses (Eisikovits, 2014). Its creation marks an important milestone in the international criminal justice landscape, without depriving each State of its sovereignty. The court’s jurisdiction is in fact residuary, meaning that the court will act only when the involved nation cannot and will not (Eisikovits, 2014).
Nevertheless, what are these trials?
A war crime trial is defined as the trial of those charged with criminal violation of principles of international law and war laws and customs (Wegner, 2015). The rationale on which trials are founded is well described by the words of the US Chief Prosecutor in the Nuremberg trials, Robert Jackson: ‘to let major war criminals live undisturbed to write their memoirs in peace, would mock the dead and make cynics of the living’ (Cassese, 1998:10). Supporters of this approach argue therefore that those responsible for atrocities have to be hold accountable so that the lost moral order is restored and a political community is established (Cassese, 1998).
Truth Commissions: following South Africa example
‘People always ask: “why reopen wounds that have closed?”… “Because they were badly closed. First you have to cure the infection or they will reopen themselves.” (Hayner, 2011:133). These are the words of Horacio Verbitsky, an Argentine journalist, that perfectly describe one of the main arguments in favor of truth commissions.
As the name itself suggests, the idea behind this measure is that uncovering the truth about past abuses will promote many of the transitional justice’s goals (Mendeloff, 2004).
Specifically, truth commissions are set up to investigate a pattern of abuses, its causes and consequences, directly engaging with the affected population (Hayner, 2011). It is a temporary body that operates for up to two years, at the end of which a summary report is submitted (Eisikovits, 2014).
The report produced not only aims at describing the events of the past, but also suggests economic and social reforms or amnesties that can help rebuild the civil society, by creating a more fair and equal environment (Daly, 2008).
They are usually officially authorized or at least empowered by the state under review; however, they operate independently from it (Hayner, 2011).
This technique gradually gained importance after the Truth and Reconciliation Commission held in South Africa in 1995 to deal with the aftermath of the apartheid. Since then, its use have become so popular that we can talk about a ‘truth cascade’ (Daly, 2008). It has in fact been used in several countries of Latin America and Africa; in Canada, Australia and Germany (King, 2015).
Rebuilding public trust
A country facing political transition after a conflict is as fragile as a castle of cards: stability has to be found again. This can only be done by rebuilding the citizens’ trust in their government (Eisikovits, 2014).
In order to do so, a complex puzzle of ‘looking backwards while moving forward’ aims has to be created, almost always leading to a comprise as argued by Macchiavelli when he states that ‘it is necessary to a Prince to learn how not to be good’ (Macchiavelli, 2013: Ch.15) so that he can act in the interest of his people (Eisikovits, 2014).
While this tension is also dealt with in the ordinary political life, in a transitional context, where it is referred to as the ‘peace versus justice dilemma’, it is particularly pronounced because the State cannot rely on basic institutions of governance to attenuate it (Freeman, 2010).
This implies that so as to establish a legitimate and functioning civil society, justice for the past crimes has to be made; however to ensure that stability it is sometimes necessary and morally acceptable to leave the past alone (Teitel, 2000).
Reaching stability is therefore influenced by both accountability and reconciliation.
A government rising from the ashes of a dictatorial rule needs to draw a bright line from its predecessor in order to regain public trust (Daly, 2008). Holding accountable those responsible for past abuses seems to be a clear way of doing so.
The obvious way of achieving accountability is the prosecution of perpetrators, which is the main purpose of war crime tribunals. The mere act of taking legal actions against high-ranking members of the previous vicious government can, theoretically, legitimize the new democratic regime, by showing that no one, regardless of social status and role within the state’s administration, is above the law (Olsen, Payne & Reiter, 2010). However logical this argument might appear, several complications arise in its application in real life.
The first issue is choosing the targets of investigation. Holding accountable the entire country for the actions of few of its members would not only be illogical, but also counter-productive, reason why the concept of individual responsibility has been used, since the Nuremberg trials (Cassese, 1998).
Nevertheless, establishing blame in such complex and wide event such as genocide is not an easy task. The Jews slaughter under the Nazi regime is the perfect example of this: several SS generals during their testimony argued that they were only following orders (Arendt, 2016). They were simply one of many cogs of an enormous machine that would eventually cause the death of thousands of people; one could also argue that they were themselves victims as not following orders in a dictatorial regime has severe consequences (Milgram, 2003).
The concept of criminal conspiracy and association, largely used in mob cases, could be adopted, allowing the indictment of individuals on the mere basis of affiliation to a criminal group, in this case the military and police forces used by the regime to maintain order and perpetrate abuses, as was done when prosecuting the Nazis (Bass, 2002).
However, it can be argued that this trick would only lead to the prosecution of military personnel and low-ranking staff members, leaving untouched senior political officials who conceived and approved the violent policies (Minow, 1998). In order to counter complaints of selectivity, the concept of ‘command responsibility’ has been shaped during the Nuremberg trials and later used by the ICTY (Eisikovits, 2014).
It is assumed that certain roles come with built in accountability for the actions of others, allowing the indictment of senior political and military figures on the basis of their leadership role (Eisikovits, 2014). Despite its usefulness, it implies a convictions on the basis of a philosophical construct rather than on hard evidence, coming in conflict with the rule of law and, therefore, undermining its impact on the legitimization of the new administration (Bass, 2002).
Another criticism crippling the impact of trial in establishing the new democracy as the moral and legal high ground is retroactivity. Nullum crimen, nulla poena sine praevia lege poenali is the enlightened principle underlying any law, preventing courts to convicts defendants of actions that were not legally defined as crimes when committed (Field, 1922). In this perspective, the existence of war crime tribunals should be considered illegal. This can be avoided either by finding quibbles in existing international laws or through the natural law argument. Some argue indeed that certain actions, because of their heinous nature, do not need to be explicitly forbidden to be punished (Eisikovits, 2014). The Nuremberg trials did establish a precedent decreasing the problem, however both the ad hoc tribunals created for Rwanda and Yugoslavia still faced retroactivity criticism (Minow, 1998).
Analyzing the Rwandan case, fairness issues arise. The enormous number of detainees, approximately 125,000 by 1999, combined with limited resources resulted in a policy of long-term, in same case life, imprisonment pending trials (Drumbl, 2000). Alleged perpetrators would therefore serve time, before even being convicted. What if the trial would end in acquittal, would it be fair for the acquitted to have spent time in prison?
In addition, in five years, the ICTR was only able to determine the guilt of one percent of the accused; can a legal system like this be said to obtain justice? (Drumbl, 2000)
These shortcomings can be addressed by the use of truth commissions that, by not being subjected to the rule of law and the rule of evidence, can create a more comprehensive account of the atrocities (Daly, 2008) enhancing legitimacy of the new democratic power. Truth commissions can be defined as a moderate approach concerning accountability (Olsen, Payne & Reiter, 2010). They in fact do emphasize the duty of holding the dictatorial regime accountable, through the tale of what truly happened.
However, its ability to erode the culture of impunity is questionable: ‘truth-telling, in isolation from efforts to punish abusers and to make institutional reforms, can be viewed as nothing more than words.’ (International Centre for Transitional Justice). Indeed several truth commissions use the practice of amnesty in order to obtain truthful and detailed testimonies from perpetrators and amnesties are sometimes suggested as a solution to move past the atrocities (Olsen, Payne & Reiter, 2010).
This is precisely the criticism faced by the Truth and Reconciliation Commission held in South Africa (Eisikovits, 2014); many exponents of the black community commented that TRC allowed apartheid’s worst offenders to get away with murder (Meredith, 1999).
Nevertheless, some truth commissions supporters argue that the mere existence of the commission constitutes accountability by increasing the likelihood of public shaming (Daly, 2008). Two are the main issues with this claim. From a moral point of view, it can be debated that no amount of shame will ever equal the pain caused by killings, rapes and tortures (Thomas et al., 2005). In addition, it has happened that former perpetrators clearly identified by name and image in the final reports remain in positions of power in the new governments. Evidence of it can be found in Chad, where more than forty ex-leaders of the police still hold positions in both the administration and security services of the state (Daly, 2008).
A stronger argument suggests that the work of truth commissions can be later used as evidence to obtain criminal prosecution of those named in the report, as proved by the Argentinean and Peruvian example (Daly, 2008). In Argentina five of the nine accused were found guilty of homicide, torture and others acts of violence, and sentenced from four and one-half years to life in prison (Hayner, 2011). The institution of trials it is in fact urged, in some cases, by the commission itself (Hayner, 2011). On the contrary others commission, such as in Morocco, the Solomon Islands and in the second Chilean commission, are explicitly forbidden from having any role in the prosecution of perpetrators (Hayner, 2011).
Even if prosecuting serious crimes is a legal obligation of the state, grounded both in the national and international law (Mendeloff, 2004); its actual application is far from being an easy and successful task and little evidence supports its deterrent power.
In 1994 for approximately one hundred days, an estimated of 800,000 people were butchered with machetes and makeshift weapons and an estimated of 500,000 women were brutally raped (Drumbl, 2000) by their neighbors. Hutu and Tutsi interethnic hate is just one of the bloody examples of how genocides and mass atrocities have their roots in ancient social disputes and ethnic, religious, political antagonisms; making it essential to mend torn relationship between the parties involved in order to rebuild the society and end the violence (Eisikovits, 2014).
Reconciliation can arguably be one of the hardest goals of transitional justice to accomplish. The problem is exacerbated in deeply divided society (Daly, 2008) where people are expected to live peacefully side by side with those responsible for their pain (Drumbl, 2000).
Supporters of both truth commissions and trials claim that ‘unacknowledged injustice can poison societies and produce cycle of distrust, hatred and violence’ (Kiss, 2000:72). The concept behind these measures is that truth-telling and prosecution of perpetrators will wipe the state clean.
Nonetheless, it can be argued that supporters of trials are driven by unrealistic ideals, while being blind to the political realities of transitional contexts (Olsen, Payne & Reiter, 2010). Prosecutions can prolong the internal conflicts, establishing a cycle of violence. Studies of the effect of the ICTY on societal peace in Bosnia found indeed that arrests or judgement resulted in increased hostility between Bosniaks, Croats and Serbs (Meernik, 2005).
The very nature of trials implies the creation of binary categories of innocent and guilty, good and evil, with no room for a densely populated middle ground (Drumbl, 2000). In cases such as the Rwandan one, the guilty party is an entire social group (Drumbl, 2000) and its prosecution entails the antagonizing of half of the population, reinforcing rather than minimizing the dualistic nature of Rwandan society (Drumbl, 2000).
Regardless, prosecution does not necessarily imply conviction. Acquittals occurring after years of prosecution could cause even more problems, triggering revolts and social unrest in an almost stable society (Mendeloff, 2004).
Furthermore, the fragile balance is jeopardized by the political spoilers (Stedman, 1997). Even if the previous regime has fallen, anti-democratic forces may maintain ideological and political power (Olsen, Payne & Reiter, 2010). This possibility is stronger when the transition has been negotiated. Spoliers’ power can be strengthened by building cases against the losers, if the trials are seen as a vicious punishment by winners (Eisikovits, 2014).
Every post conflict tribunal has been accused of victor’s justice, however a distinction between the circumstances under which the tribunal has been established and the fairness of its operation needs to be made (Eisikovits, 2014). The trail can still be fairly executed, paving the way for reconciliation.
Truth commissions face the same criticism concerning victor’s justice: tellers may have interest in telling a particular truth (Daly, 2008), definable as victor’s truth in which the losing party is used as scapegoat. Moreover, the final report enlightens how spread those crimes were and how little the state care about it, causing exacerbation of resentment (Daly, 2008).
Anyway, people interpret truth in different ways, making it harder for the report to change people beliefs as demonstrate by post-war Serbia: while almost all the interviewees heard about snipers’ killings in Sarajevo, only 54.7 percent of them believed it (Ilic, 2004). Mainly this is because people want to hear their truth (Daly, 2008), thus only those predisposed to accept the report’s truth would benefit from it.
Nevertheless, supporters of both trials and amnesties agree on defining truth commissions as a unique middle ground between accountability and reconciliation (Olsen, Payne & Reiter, 2010). The reforms proposed can improve economic and social conditions of victims, actually improving their lifestyle (Daly, 2008). In fact, in post-war countries there may be more pressing issues than justice, such as providing food and education for their children, as attested by a forty-five years old widow in East Timor (Daly, 2008). Once the victims feel their necessities are addressed, they may be more willing to put the past behind and open a new chapter of their life, in which there is room for reconciliation.
Furthermore, it can be claimed that both trials and truth commission ‘promote interethnic reconciliation through the individualization of guilt in hate-mongering leaders and by disabusing people of the myth that adversary ethnic groups bear collective responsibility for crimes’ (Akhavan, 1998:766). Therefore, by holding discerning the single perpetrator from the groups he belongs to, adversial groups can begin to rebuild their relationship (Mendeloff, 2004).
Healing the wounds
Rapes, killings, violence, torture. This is what genocide’s victims deal with daily during the period of terror, and what they are left with once it is over.
If there is a guilty party, as the necessity of accountability implies, there has to be a wounded one in need of healing (Leebaw, 2003). In a transitional context, two types of healing are required, the individual healing of victims and the nation healing, which allows reconciliation (Mendeloff, 2004).
Both truth commissions and trials, in ensuring healing, draw upon the same psychological assumption that trauma is ‘better out than in’ (Hayner, 2011:145). Psychologists in fact agree that repressing emotional pain can cause severe psychological trauma, while the expression of it ensures recovery (Hayner, 2011). In this context it is therefore believed that ‘psychological restoration and healing can only occur through providing the space for survivors to feel heard and for every detail of the traumatic event to be re-experienced in a safe environment’ (Hamber, 1995:5).
The question that spontaneously arises is: can these measures be considered a safe environment?
War crime trials have suffered a great deal of criticisms in regard to victims treatment. Some argue that they do not sufficiently focus on victims’ suffering (Eisikovits, 2014). In fact, in trial dynamics, testimonies of survivors are just one of many tools used by the prosecution to make the case and obtain a conviction. The spotlight remains on the defendant, so much that ‘trail resembles a play in that both begin and end with the doer, not the victim’ (Arendt, 2016:8).
Furthermore, trails are subjected to the rule of evidence, which entails cross-examination by the defense (Giannelli, 2001). During cross-examinations the witness credibility is challenged by attacking both reputation and conduct (Giannelli, 2001): stories can be twisted, taken out of context, resulting in possible re-traumatization (Minow, 1998). A testimony can also be not admitted because judged not to be material, competent or relevant (Giannelli, 2001), therefore preventing some survivors from even participate in the trial.
Some of these issues have been addressed by the creation of the ICC, in which victims have a greater role than under traditional tribunals (Eisikovits, 2014). They can in fact request the opening of preliminary investigations, ask to testify and directly send information to the court’s prosecutor (Rome Statute of ICC, 2011). However, the exact jurisprudence regulating survivors’ involvement is still being developed (Eisikovits, 2014).
Tribunal’s shortcomings in dealing with victims’ pain advanced the development of truth commissions (Eisikovits, 2014). They in fact recognize survivors as moral agent and provide them with a platform in which their suffering is acknowledged and their dignity reaffirmed (Kiss, 2000).
Firstly, truth commissions are not subjected to the rule of evidence, therefore victims do not have to prove their credibility; their truthfulness is assumed (Eisikovits, 2014). Thus, victims can tell their stories in uninterrupted manner, which is believed to have a therapeutic effect (Hayner, 2011).
However, the positive psychological effects of having a safe, respectful and non-judgmental environment in which traumatic experiences can be discussed appear over a period of time (Herman, 1992). Truth commissions are not a long-term therapy, they rather offer a one-time chance and a stranger as therapist instead of an individual with whom a trusting relationship has being built (Hayner, 2011). In fact, there is no empirical evidence, thus far, suggesting any long-term healing for those who testified (Mendeloff, 2004).
In addition, every individual deals with pain differently: from a psychological standpoint, some heal facing the truth and being acknowledged as victims, some by forgetting and moving on (Daly, 2008), making truth commissions a positive experience for some and a nightmare for others (Mendeloff, 2004).
Nonetheless, in some places, the testimony of survivors assumes a far greater role than the individual’s healing. A transition from mass atrocity into a stable and lasting society requires the value of an entire class to be affirmed (Eisikovits, 2014). By letting this class stand in front of a jury, denouncing the hardships and pain they have been put through by the previous administration, presents them as active and rightful agents of the State (Mendeloff, 2004). In South Africa not only the content of testimonies was significant, the mere act of blacks testifying was transformative as well (Eisikovits, 2014).
However, this argument presents a fundamental difficulty: some victims argued that the restoration of their dignity requires them to feel part of civic zone protected by law, meaning that their injuries merit the criminal law’s protection (Eisikovits, 2014).
Publicly ascertaining the truth, either through prosecution or truth commission, hinders the conspiracy of silence that often grows around political violence, intensifying victims’ ‘sense of isolation, loneliness and mistrust of society’ (Danieli, 1998:5). The use of these measures thus can be very powerful.
However, if a trial ends in acquittal, this sense of isolation and mistrust can be amplified. Likewise, the final report of a truth commission is unlikely read by both victims and the population in general, as happened in Chad (Daly, 2008), lessening its impact.
Lastly, following transition survivors keep living under extremely difficult socio-economic conditions (Daly, 2008); conditions that do not promote healing even in presence of efficient trials or truth commissions. How can truth and justice heal a tangible medical plague as the spread of AIDS following rapes during the Rwandan genocide (Zimbardo, 2008)?
Some truth commissions addressed this problem by deeply penetrating into communities as showed by East Timor’s reconciliation program (Burgess, 2004).
‘Those who do not remember the past are condemned to repeat it’ (Santayana, 2018). Every transitional justice measure is set in the hope that the future generations will learn from past mistakes and do better. In order to do so, a truthful record of what happened needs to be written. Supporters of both trials and truth commissions argue that their practice is instrumental in producing comprehensive historical records.
But what is truth?
In this context four types of truth can be identified: microscopic, logical, experiential and dialogic. Respectively, the first two can be attributed to trials, while the latter are created in truth commissions (Sachs, 1999).
As said beforehand, trials are subjected to the rule of evidence, which gives rise to a selective story-telling, because this truth is ‘based on a sequential proof of facts beyond reasonable doubt’ (Drumbl, 2000:293). In fact, many pieces of evidence can unravel once told through legal lenses, as demonstrated by failed prosecution of Tadic by the ICTY for ordering sexual mutilation (Akhavan, 1998). The insufficient evidence placing Tadic in the room where the castration happened reduced the tragedy of a Bosnian Muslim to a series of missing proofs (Drumbl, 2000).
Additionally, it can be argued that the history told following trials will always be intrinsically flawed because ‘the victor will always be the judge, and the vanquished the accused’ (Bass, 2002:8).
In light of this, truth commissions are often believed to provide a more honest record (Eisikovits, 2014). In fact, while examining the South African TRC, it can be clearly seen that the amnesty-for-truth mechanism combined with a full disclosure clause (Meredith, 1999) facilitated the disclosure of information by both victims and perpetrators.
Nevertheless, the truth reported is the product of several decisions taken in regard to the commission’s creation and work (Daly, 2008). Ideally, to obtain the ‘real’ truth every party should tell its story and the teller should be neutral. However, this is impossible: opposite parties’ story are incompatible and tellers have to choose which truth to tell, in order to prevent romaticizations of the past regime and enhance the legitimacy of the rising democracy (Daly, 2008) falling into the victor’s truth criticism.
Anyway, creating an authoritative account of history is a complex task because of the elusive nature of truth (Hayner, 2011). Truth is not one; on the contrary every historical period narrative results from the influence of social, historical, economical and psychological forces (Mendeloff, 2004). This complexity of layers was recognized by the South African Commission, which created a tapestry of truth (Meredith, 1999).
In addition, even if truth is proclaimed by an official institution, its acceptance by those against whom it is directed is not predictable (Ignatieff, 1996); meaning that its impact is strictly related to the willingness of acceptance by the general population.
In this regard, it is therefore fundamental that the record is somehow included in educational programmes so that a repetition of such violence is prevented and the nation is educated in the respect of human rights (Mendeloff, 2004). It can be however be argued that the truth about the Nazis did not save the Argentinean desaparecidos nor prevented the Darfur genocide (Daly, 2008).
Nonetheless, it is possible that permanent changes in the culture and popular consciousness may happen over generations, when the national identity is no longer fixed to old conflicts (Hayner, 2011). Although difficult, this process can be observed in several countries of Latin America which are now stronger democracies that they probably would have been without any exercise of truth-telling (Daly, 2008).
Ultimately, the truth that both victims and the external spectators are eager to hear it the one that might never be answered: the psychological truth (Daly, 2008), the reason behind the violence and the pain that deeply shakes everyone who reads about these atrocities.
Considering everything that has been said thus far, it may be preferable to downsize the expectation of the impact of truth and understanding that all that can be achieved by it is the reduction of number of lies that can circulate in the public discourse (Ignatieff, 1996).
The Justice Balance
What presented thus far depicts a pretty complex picture in regard to the ability of trials and truth commissions to accomplish predetermined goals.
An alternative approach can consequently be considered: the holistic approach (Olsen, Payne & Reiter, 2010), which suggests that the complexity of the social geography in a post-genocidal society (Josephson, 2013) is better addressed by a combination of measures. Following the Transitional Justice Data Base Project in which 91 transitions between the 1970 and 2004 were analyzed, two particular combinations of measures have found to produce positive results: trials and amnesties and trials, amnesties and truth commissions (Olsen, Payne & Reiter, 2010). Both the Uruguayan and Greek case are perfect examples of the effectiveness of a holistic approach (O’Donnell & Schmitter, 1986).
This may be because ‘transitional justice is a long-term process and a state may only be adequately prepared years later to take on the challenge of adjudicating trials or exposing wrong doing through a truth commission’ (Fletcher, Weinstein & Rowen, 2009:219).
In conclusion, we may never be completely satisfied by transitional justice measures, however they may work by just being constantly pursued (McAdams, 2011).
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