## 1. Introduction to Transitional Justice


 The term "Transitional Justice" has come, in recent
years, to designate a field of academic inquiry, as well as political
practice, concerned with the aftermath of conflict and large-scale
human rights abuses. Theorists and practitioners of transitional
justice focus on the most effective and legitimate ways of addressing
past wrongs and moving towards the (re)establishment of a decent civil
order. In this introduction, I describe the political and moral goals
officials tend to pursue in transitional settings and map out some of
the tensions between these goals. I argue that such strains are the
result of an endemic friction between the demands of stability and
justice after war (the introduction draws on Eisikovits 2013).


### 1.1 The Contradictions of Transitional Justice




In making the transition from a violent past into settled, legitimate
governance, officials typically pursue multiple goals. While some of
these are mutually reinforcing, others come into conflict with each
other. As a result it is difficult to fully pursue all transitional
goals at the same time. In what follows I describe the most important
transitional goals and elaborate about the relationships between
them.


1. *Creating a reliable record of past human rights
abuses*. Such a record is obviously important, for its own sake,
as part of the very human project of keeping our history as accurately
as
 possible.[3]
 It
is also helpful in rebuffing spurious revisionist claims (thus, for
example, the record created by the Nuremberg trials has been helpful
in rejecting the claims of various Holocaust deniers) and, more
broadly, in ending the displays of impunity so typical of
authoritarian governments. Once such a record is established it
becomes impossible for those who colluded with an oppressive regime to
deny responsibility and involvement in past
 crimes.[4]
 Perhaps most
importantly, the creation of an accurate, comprehensive, and public
historical record matters for the psychological healing of victims who
report, time and again, benefitting from official and public
acknowledgement of their suffering (see, e.g., Minow 2000).
2. *Setting up a functional, professional bureaucracy and civil
service*, to efficiently serve the needs of the population. As
with the cementing of the rule of law, part of the idea is to
establish (or reestablish) citizens' trust in their government; once
basic services are rendered in a reliable, non-arbitrary, fashion
ordinary citizens may gain (or regain) the belief that government's
job is to serve rather than oppress them.
3. *Helping victims restructure and repair their lives*, by
attending to their physical and psychological afflictions, restituting
lost property, compensating them for their losses, and fixing
historical injustices that systematically disadvantaged them. Needless
to say, this project overlaps with the second and third goals; after
all, to address the psychological distress of victims it is helpful to
punish those who hurt them and to provide respectful forums in which
the stories of such victims can be heard.
4. *Stopping violence and consolidating stability*, so as to
allow the creation of a normal civic and commercial life, cement trust
in government, and draw outside investments.


 While all of these goals are politically important, it is easy to
see how they can come into conflict. Prosecuting the guilty can harm
political stability, as the prosecuted and their (often armed)
followers become resentful about what they perceive as a politically
motivated witch-hunt. Post-war prosecutions may also come into
conflict with the need to cement the rule of law, as such prosecutions
often require departures from the rules of procedural justice. Such
was the case with the retroactive criminalization that lay at the
heart of the Nuremberg Trials. The doctrine of "Command
Responsibility" first developed at Nuremberg and used later by
the International Criminal Tribunal for Yugoslavia also departs from
basic principles of legalism, by basing convictions on the status of
defendants rather than on direct and specific evidence concerning
their actions (on this, see Drumbl 2005).




Even when prosecutions do not threaten political stability and manage
to stay true to the principles of the rule of law, they can still come
into conflict with the desire to create a robust, comprehensive
historical record. When trials are used as the primary mechanism of
transitional justice, their very subjection to the rules of evidence
means that some important information (namely testimony that does not
pertain to specific indictments, or evidence obtained without full due
process etc.) will be excluded from the record. This limitation has
prompted some scholars to argue that truth commissions are preferable
to war crime trials in this respect: since such commissions are not
subject to the rules of evidence, they are able to collect more
information, expose a more comprehensive picture of past injustices
and to include a greater emphasis on the role of institutional and
commercial actors indirectly involved in
 supporting
injustices.[5]





The need to provide victims with meaningful, respectful public forums
in which they can tell their stories and receive a degree of
acknowledgment, central to the fifth aim, also comes into conflict
with some of the basic commitments of legalism. Criminal trials
usually focus on the interests of the defendants. A respectable
criminal trial cannot be a platform for victims to tell their stories
in an uninterrupted fashion. Since the testimony of victims is
instrumental for proving indictments, it is most often subject to
interruptions and vigorous cross-examination. As a result, a typical
criminal procedure can be quite an adversarial experience for
victims. This is true in spite of a recent expansion of the role of
victims in international criminal law. In fact, an undue expansion of
that role creates the grounds for criticizing international criminal
law for abandoning some of its legalist underpinnings (see, for
example, Rauschenbach and Scalia 2008).



Finally, the need to set up a functioning bureaucracy, so important
for the creation of public trust and the restoration of political
normalcy, can clash with the desire for accountability inherent in the
first two goals. When most officials implicated in past crimes are
purged or "lustrated", few competent administrators remain
to do the work of government. Such a competence gap may, in turn,
undermine political stability, economic viability, and public
trust--all crucial factors in a successful transition. Indeed,
worries about the tradeoff between accountability and the
functionality of government have led many polities to either hedge or
give up their lustration policies
 mid-stream.[6]





Almost every transition since World War II displays these tensions.
The Nuremberg trials, often viewed as the pinnacle of legalism, were,
nevertheless, based on *ex post facto* charges (see Bass 2002:
Ch. 5). The Spanish transition to democracy was so fragile that it
had to commit itself to a "pact of forgetting"--more
than three decades of silence about abuses committed during the civil
war and under Franco. Historical justice and the need to preserve the
peace came into conflict, with the latter receiving precedence until
the 2008 Law of Historical Memory reversed the trend (see Tremlett
2006). In South Africa, de Klerk's National Party threatened civil
war if the African National Congress insisted on war crime trials
against apartheid officials. The celebrated Truth and Reconciliation
Commission, with its amnesty-for-truth arrangement, was the resulting
political compromise meant to avoid both punishment and impunity. The
ANC's demand for retributive justice went unheeded (to the outrage of
many, including the family of Stephen Biko, who unsuccessfully sued
the Truth Commission in the South African Constitutional Court)
because heeding it would have eliminated the chance for a democratic
South Africa (for an overview see Meredith 1999). The International
Criminal Tribunal for Rwanda, operating in Tanzania, netted some of
the Genocide's ringleaders. But Rwanda was not able to apply rigorous
criminal responsibility to all those who participated in the murders.
Doing so would have taken several centuries. Thus a system of
traditional justice, *Gacaca*, was devised. These makeshift
"Grass Courts" failed to live up to western standards of
legalism (the judges were not professionals, rules of evidence were
not followed) and it failed to produce satisfying punishments. But it
did provide a platform from which at least some of the crimes were
admitted and acknowledged, and it did manage to empty the Rwandan
jails which contained hundred of thousands of prisoners. In the
tension between practical functionality and retributive justice,
Rwanda nodded to the latter, but eventually focused on the former.
The policy of de-Baathification carried out negligently in the
aftermath of the second Gulf War, combined with the thoughtless
disbanding of the Iraqi army ended up fueling the anti-American
insurgency there, in addition to draining Iraq of many of those who
had crucial administrate skills and experience. Here too, the
commitment to retribution and the desire to create trust by
"cleaning out" those associated with the previous regime
actually ended up bringing about the opposite effects by further
destabilizing the country and harming its bureaucratic competence at a
very sensitive time (see Pfiffner 2010).


### 1.2 Peace versus Justice




Post war transitions are characterized by the co-existence of
potentially conflicting, yet politically and morally important,
goals. As we have seen, some of these are about doing justice for past
abuses, while others are concerned with consolidating stability and
creating functioning, competent institutions. The uneasy co-existence
of these aims - the fact that they are all dearly held, and yet cannot
quite be fully realized together--points to a significant tension
between considerations of justice and social utility after
war. Needless to say, this tension exists in ordinary political life
as well. The friction between what is morally called for and the way
in which leaders must sometimes act for the overall benefit of their
subjects has always been important to our understanding of
politics. Machiavelli articulates it most famously when he argues that
a Prince might have to learn how "not to be good" in order
to act in the best interest of his polity (Machiavelli, *The
Prince*, Ch. 15). Sartre provides the dramatic depiction and
gives the problem its most familiar name in his play Dirty Hands. One
of his protagonists puts it starkly: "Well, I have dirty
hands. Right up to the elbows. I've plunged them in filth and
blood. But what do you hope? Do you think you can govern
innocently?" (Sartre, "Dirty Hands," Act V). The
most important contemporary philosophical treatment appears, of
course, in Michael Walzer's famous article "Political Action:
The Problem of Dirty Hands" (Walzer 1973). In transitional
contexts this tension is usually labeled the "peace versus
justice" dilemma (see, for example, Freeman 2010 and Mihai
2010)--denoting that the demands of quiet and stability may well
require compromising the morally important demands of retributive
justice and accountability. Thus, for example, it was wrong to allow
apartheid murderers to get away with murder during South Africa's
transition. But if they had been tried as war criminals, South Africa
would have most likely erupted into civil war. Similarly, it was wrong
to bury Spain's history of violence for more than thirty years after
the end of Franco's dictatorship. But, had this history been excavated
earlier, Spain may well have failed to develop into the liberal
democracy it is today.


 Viewing the peace vs. justice dilemma as a variation of the
problem of dirty hands helps us better understand the nature of the
tensions at play after war. Properly described, peace vs. justice is
not a debate between proponents of a Kantian commitment to full
retributive justice and cynical realists who are willing, in the
infamous words of the Cambodian Prime Minister Hun Sen, to "dig
a hole and bury the past" (quoted in Mydans 2010). Rather, the
tension is more properly viewed, like the problem of dirty hands, as a
paradox: officials as well as citizens in transitional countries
concurrently hold two powerful yet often contradictory moral
intuitions: that in order to establish a legitimate, functioning civil
society one must do justice for the crimes of the past and that to
secure quiet, stability and a functioning government it is sometimes
necessary and morally acceptable to leave past crimes and past
criminals alone. An analogy to another such paradox may be helpful in
illustrating the difference between a paradox and a debate. The
problem of moral luck famously delineated by Thomas Nagel and Bernard
Williams denotes a paradox about how we make judgments about praise
and blame: we tend to think that people should be praised or blamed
only on the basis of what they can control, and yet we regularly
praise and blame people on the basis of the results of their
actions--even if these are beyond the control of the agents
involved (Nagel 1979 and Williams 1981). A drunk driver who got home
safely and a drunk driver who hit a child on the way home took the
same risk getting into their cars. The first intuition would require
treating them similarly. The second recommends more severe punishment
to the driver actually involved in an accident.




A moral debate can, in principle, be settled by a superior set of
arguments. A paradox can only be described. Caught in the paradox
between peace and justice we might end up emphasizing one kind of
intuition over the other after war. But this is not the same as
winning a moral argument and doing away with a discredited
position. The Spaniards emphasized the need for stability over the
need for accountability for a period of thirty years. Then, when they
were confident enough that stability had been consolidated, they
shifted their emphasis. The Rwandans, after conducting nominal
criminal trials in Tanzania, made a similar decision and cleared the
dockets by means of their *Gacaca* courts. Rwanda is now more
quiet and stable. But such quiet, as commentators like Philip
Gourevitch have noted (see, most recently, Gourevitch 2009), is an
uneasy one as long as survivors are resentful about failure to bring
perpetrators to justice. Stated differently, there is no real
"debate" between peace and justice after war, as some
scholars and NGOs claim, only a continuing negotiation that, at any
given point, will lean towards one of these intuitions. The best we
can do is understand their co-equal status, settle on a policy that
lies on the continuum between them, and constantly reevaluate.



In spite of the fact that the peace versus justice tension is merely a
specific manifestation of the problem of dirty hands, there is an
important distinction that must be observed: while the tension between
justice and social utility is part of the political life of any
consolidated democracy, it is central and definitive of political life
during transitions. In consolidated democracies, such tensions can be
alleviated by legal institutions and traditions that embody
conclusions about how to manage the requisite tradeoffs between
justice and social utility (these include a constitution, a body of
accepted constitutional jurisprudence, a respected high court with
powers of judicial review, etc.). Part of the role of such
institutions and traditions is to provide guidance about which
tradeoffs would seem most justifiable given a comprehensive
interpretation of the state's legal and political history. But
transitional times are exactly the periods in which such institutions,
traditions, and interpretive principles are first being set out. When
the argument arose about abuses of executive power in the Unites
States following the September 11, 2001 attacks, that debate could
take place on the background of a history of executive power grabs and
the responses to them (Jefferson's requisitioning of funds for the
military without congressional approval and Lincoln's suspension of
*habeas corpus* during the civil war come to mind). In a
transitional context, that long and important political discussion is
missing. More precisely, the very point of the transitional period is
to set up the institutions and methods responsible for having that
debate. The upshot of this predicament is two fold: it is harder for
transitional societies to resolve peace versus justice decisions
because the traditions and institutions so important for navigating
these questions are not yet present. At the same time, the very act of
creating of such institutions inevitably creates situations where
peace and justice must clash: the need to quickly set up a competent
court and police systems to allow for stable government may well
require hiring administrators tainted during the tenure of the
previous regime; the need to attract foreign investors and maintain
peace in the streets may require some compromises on the extent and
length of criminal proceedings against past perpetrators, and so
forth.




To recap, the tension between peace and justice is especially
pronounced in transitional settings because creating the basic
institutions of governance is more likely to raise it, and because the
guidance available in settled context from the existence of such
institutions is missing. To this dual explanation we should add that
the conflict between peace and justice is further heightened in
transitional situations because the political stakes are uniquely high
during such moments. If a transitional society cannot consolidate
peace and functioning government, the very effort to create a decent
new state suffers shipwreck. This kind of fragility, where the entire
political project is at stake, is more likely to float peace versus
justice dilemmas than a specific crisis in a consolidated democracy.
Such localized crises typically implicate localized endeavors, not the
existence of the political system itself.


## 2. War Crime Tribunals


### 2.1 Historical Background




The 20th century's most famous and probably most
significant war crime trials were held in Nuremberg, Germany after the
end of World War
 II.[7]
 Between 1945-1949 the United States
and its allies held a series of 13 trials. The first, and most famous
of these, involved the prosecution of senior surviving Nazi officials
including Hermann Goring, Joachim von Ribbentrop, Julius Streicher,
Rudolf Hess and Albert Speer. Defendants in the other 12 trials, which
took place between 1946-1949, included doctors, jurists,
industrialists, and other key stake holders in the Nazi state.


 Initially, it was not clear that the allies would put their
defeated enemies on trial at all. The creation of the first Nuremberg
Tribunal was preceded by a long debate, especially fierce in the
United States. Hard liners, represented most vocally by American
Secretary of the Treasury Henry Morgenthau Jr., advocated the summary
execution or forced removal of the entire Nazi chain of command and
the destruction of Germany's industrial capacities. On the other hand,
Legalists, led by Secretary of War Henry Stimson, insisted on
affording the Nazis fair trials that would honor American procedural
protections. The United States fought the war in defense of political
freedom, the Legalists insisted. Such freedom depends on upholding the
ideals of the rule of law. These ideals, in turn, require the
individualization of guilt and giving defendants a fair chance to
answer the charges against them. Germany, Stimson warned, must not be
punished en-masse; such collective punishment would only serve to
increase resentment and may well plant the seeds for another
war. Instead, the careful and fair employment of the courts would
allow the Germans to "internalize" their guilt. As Stimson
put it:



>  ...punishment is for the purpose of prevention
> and not for vengeance. An element in prevention is to secure in the
> person punished the conviction of guilt" (for a summary of this
> debate see Bass 2002: 152-161).
> 
> 




On November 21, 1945 Robert H. Jackson, Chief of Counsel for the
United States at Nuremberg, began the case for the prosecution with
the following, now iconic words:



>  The privilege of opening the first trial in history
> for crimes against the peace of the world imposes a grave
> responsibility. The wrongs which we seek to condemn and punish have
> been so calculated, so malignant, and so devastating, that
> civilization cannot tolerate their being ignored, because it cannot
> survive their being repeated. That four great nations, flushed with
> victory and stung with injury stay the hand of vengeance and
> voluntarily submit their captive enemies to the judgment of the law is
> one of the most significant tributes that Power has ever paid to
> Reason. (Jackson 1945)
> 
> 




The prosecution team at Nuremberg had originally planned to
concentrate on charges of aggressive war rather than on Germany's
wholesale destruction of Europe's Jews. Much of the initial legal work
revolved around the creation of a jurisprudence of conspiracy that
would allow the conviction of the entire Nazi leadership. But the
liberation of the Dachau and Bergen-Belsen concentration camps, and
the horrific evidence discovered there, left the allies with little
choice but to incorporate charges of crimes against humanity into
their trial strategy (Bass 2002: 180).


 The defendants' complaints about "victors' justice"
and the retroactivity of the charges not withstanding (more on this to
follow), the Nuremberg trials still stand out as "legalism's
greatest moment of glory" (Bass 2002: 203). In spite of intense
political pressure by Stalin, Churchill, and powerful figures inside
the United States to dispense with trials all together, and in spite
of the unprecedented nature and magnitude of the crimes, the judges at
Nuremberg presided over a remarkably cool and orderly procedure. For
the first time in history, senior political leaders were indicted and
tried for "crimes against humanity."




The tribunals also established important principles of international
justice, such as the responsibility of heads of state, the rejection
of the infamous "I was just following orders" excuse, the
weakening of retroactivity as a defense against crimes of mass
atrocity, and the right of war criminals to a fair
 trial.[8]
 In addition to these
important legal achievements, Nuremberg also established the trial as
an invaluable instrument for creating a credible, lasting historical
record of human rights abuses.




The Nuremberg trials were succeeded, in the spring of 1946, by the
Military Tribunal for the Far East, held in Tokyo. Twenty-eight
members of Japan's military and political leadership, including former
Prime Ministers, War and Navy Secretaries, generals, diplomats, and
some economic luminaries were indicted for crimes against the peace.
Twenty-five of the defendants were convicted. Seven were executed, and
the remaining 18 received prison sentences ranging between 7 years and
a life sentence.




The Tokyo proceedings never achieved the prominence of the Nuremberg
tribunals. Explanations for their relative obscurity include the
unavailability of some of the trial records, the fact that the
perpetrators were not household names in the west, and the allies'
embarrassment about disagreements between the judges on using the
death sentence, and on the fairness of the proceedings (for more
detail see Futamura 2008 and Totani 2008).


 In spite of the ambitious standards of accountability for mass
atrocity set at Nuremberg and Tokyo, the actual practice of
international criminal justice went into a prolonged lull once the
Cold War began. The sharp ideological differences between the
superpowers made the cosmopolitan ideals underlying such trials less
persuasive. Concerned that war crime prosecutions would become one
more arena for political conflict, neither the Americans nor the
Russians pursued them. The lull ended with the collapse of the Soviet
Union and the end of the Cold War, and the first significant war
tribunals thereafter were established by the United Nations in the
1990s--the ad hoc International Criminal Tribunal for the former
Yugoslavia at The Hague (ICTY), in 1993, and the ad hoc International
Criminal Tribunal for Rwanda in Tanzania (ICTR), in 1995.


 The ICTY got off to a rocky start. Tribunal president Theodor
Meron described it as "little more than an ideal" at its
inception in 1993. The trial, a symbolic "expression of
outrage", served more as a salve for international guilt than
instrument of international justice. Financial resources were
initially so meager that the court could not afford to pay more than a
few months worth of rent and salaries (Bass 2002: Ch. 6). But in
recent years, the tribunal has come into its own. While the historic
trial of Slobodan Milosevic could not be completed because of the
defendant's death, the ICTY indicted the first President of Republika
Srpska (Bosnia and Herzogovina), Radovan Karadzic, in July 2008. He is
currently conducting his defense. Additionally, Ratko Mladic, the
military mastermind of the siege Sarajevo and the massacre of
Srebenica, was arrested in northern Serbia on 26 May 2011 and is
currently on trial in the Hague. Biljana Plavsic, another former
President of Republika Srpska, was convicted of war crimes in
2002.


 The final trial for the ICTY has recently commenced. Goran Hadzic,
who went from warehouse worker to rebel Serbian president, was
arrested in northern Serbia on July 20, 2011 after seven years as a
fugitive. He has pled not guilty to "involvement in the murder
of hundreds of Croats" as well as large scale expulsions. He is
the last of the 161 suspects indicted by ICTY to face trial. Hadzic,
Karadzic, and Mladic were all arrested in Serbia after years on the
run from international justice. The impending terminus of the court's
activities underscores the transitory nature of such ad hoc war crimes
tribunals.The court's annual budget is now upwards of $310 million and
it employs more than 1,100 people from 82 countries. The ICTY has
convicted 64, acquitted 13, sent 13 for trial in domestic courts, and
withdrawn indictments against 36, including 16 who died after being
charged. Eighteen suspects are currently being tried, while 17 are
appealing their convictions.




The tribunal often faced, and to some extent still faces, accusations
of inefficacy. Ad hoc tribunals lack their own coercive power and rely
on the support of individual nation-states. Little progress was
initially made in the 1990s towards the capture of important war
criminals in the former Yugoslavia. Yugoslavia was not then in a truly
transitional state such as found in Germany or Japan at the end of
WWII, as the Serbian government of Slobodan Milosevic, who had
supported the Bosnian Serb commanders, remained in power. There was,
as in other regions in which war crimes have occurred, hostility to
outside monitoring and extranational justice. This was also seen to a
lesser extent in Croatia. However, national (or domestic) justice
proved itself to be overwhelmingly corrupt, biased, incompetent, and
inadequate.




Only after Milosevic's fall from power did the new Serbian government
become more amenable to cooperating with demands for international
justice. The rebel Serbian leaders did and still do retain the
sympathies of much of the Serbian population. External pressure points
proved to be effective, as Serbia's government responded positively to
a carrot and stick approach known as the policy of
conditionality. Serbia's European Union (EU) membership application
was blocked until Serbia complied and arrested the trio of Mladic,
Karadzic, and Hadzic. The principle behind conditionality does not
differ significantly from the rationale behind sanctions regimes, such
as those employed against apartheid South Africa, Rhodesia, and
(currently) Iran.



The ICTR, located in Arusha, Tanzania, can also boast substantial
achievements. The court has issued the first ever genocide conviction
by an international tribunal, as well as the first conviction in which
rape was considered a crime of war. Given the massive domestic
prosecution of *genocidaires* by the Rwandan authorities, the
ICTR has primarily focused on the indictment of "big
fish"--senior level suspects involved in the design and
planning of the genocide. These indictments have resulted in genocide
convictions of Rwanda's former Prime Minister, Jean Kambanda, and
quite a few cabinet members.




In addition to securing significant convictions and setting legal
precedents for the practice of international humanitarian law, the
ICTY and ICTR were also successful in creating detailed records of
atrocities. In this, both tribunals continued the legacy of the
Nuremberg Tribunals, which, as mentioned earlier, aimed not merely at
the conviction of the guilty but also at reliably documenting the
horrors for
 posterity.[9]





A complaint consistently made against the ICTY and the ICTR has been
that these tribunals do not operate on the sites where the crimes
being investigated took place. This fact, so the criticism goes,
creates a disconnect between the people who suffered throughout the
war and the process in which their suffering is addressed. The attempt
to address such criticisms has resulted in the creation of a rather
innovative form of international justice--the Internationalized
or Hybrid Courts. These bodies, which have been operating in Bosnia
Herzegovina (since 2005), Kosovo (since 2000), Cambodia (since 2003),
Sierra Leone (since 2002), East Timor (between 1999-2005), and
Lebanon (since 2007), employ both international and local jurists and
adjudicate on the basis of a mixture of national and
 international
law.[10]
 Unlike
the Nuremberg and Tokyo tribunals none of the ad hoc tribunals such as
the ITCY and ITCR are empowered to impose the death penalty, though no
centralized prison exists to house those convicted.




Among the criticisms levied against the tribunals is their alleged
Western bias. The Special Court for Sierra Leone, which in April of
2012 convicted former Liberian leader Charles Taylor of aiding and
abetting war crimes, was funded almost exclusively by the United
States, United Kingdom, Canada, and the Netherlands. The international
courts and the human rights which they embody are Western liberal
concepts with far less resonance in other parts of the world. Some
have questioned the tribunals are too focused on Africa, as all
pending cases currently are Africa-related. The Africa Union has
accused the ICC of being an Euro-American neo-colonial enterprise,
though this may be taken with a certain pinch of salt, as many of the
leaders within the African Union have good reason to believe that they
may one day be called to the defendant's docket.




Perhaps the most significant development in international criminal
justice since the Nuremberg trials has been the establishment, by the
Rome treaty in 1998, of the permanent International Criminal Court
(ICC) in The Hague. By 2011, 114 nations had ratified the Rome
Statute. The court has jurisdiction over serious crimes (genocide,
crimes against humanity, aggression) committed after July 1, 2002
(when the statute took effect), by a national of one of the states
that are party to the Rome treaty. It also has jurisdiction over
crimes committed on the territory of such state parties, or when the
UN Security Council refers a specific case to it. The UN Security
Council is authorized not only to refer cases to the court but also to
ask its prosecutor to suspend proceedings. Nevertheless, Security
Council members Russia, China, and the United States have not ratified
the statute. This position is shared by several other major countries
such as India, Indonesia, and Israel. Within the next several years,
tribunals for Sierra Leone, Rwanda, the former Yugoslavia, Lebanon,
and Cambodia will close, leaving the ICC as the sole institution of
international criminal justice.




Importantly, the court's authority is residuary: it acts only if
member nations cannot or will not.




Most of the cases before the ICC involve ongoing conflicts. This has
required the establishment of field offices in order to assist in
investigations and the collection of evidence, as well as to conduct
outreach operations to local populations. While there are immense
practical difficulties in gathering evidence and enforcing arrest
warrants in active war zones, senior ICC officials have claimed that
their real time involvement has increased deterrence.
 [11]





So far the ICC has taken up cases of war crimes committed in Uganda,
the Congo, and the Central African Republic. All three countries have
referred these cases themselves. In addition, the UN Security Council
has referred the case of Sudan, which is not a party to the Rome
treaty. After conducting an investigation into the referral, the
court's prosecutor has recently issued an indictment against Sudan's
President, Omar
 al-Bashir.[12]
 A decade after the courts creation, 22
arrest warrants have been issued, and five suspects currently are in
custody. Recently (as of July 2012), the United States has started to
apply pressure on President Paul Kagame of Rwanda to end his
assistance to rebel factions in Congo renowned for their egregious war
crimes. The United States indicated that there might be a reduction in
military aid to Rwanda, but also that Kagame personally may face
indictment and (ultimately) prosecution at the ICC.




One of the most innovative features of the ICC is the fact that it
gives a significant role to victims in its proceedings. Victims can
send information directly to the court's prosecutor, they can request
the opening of a preliminary investigation, they can appear before the
court's pre-trial chamber when it deliberates on whether to open a
full blown investigation into a case, and, most significantly, they
can ask to present their position during the trial itself. Article 68
(3) of the ICC Statute reads:



>  where the personal interests of the victims are
> affected, the Court shall permit their views and concerns to be
> presented and considered at stages of the proceedings determined to be
> appropriate by the Court and in a manner which is not prejudicial to
> or inconsistent with the rights of the accused to a fair and impartial
> trial. Such views and concerns may be presented by the legal
> representatives of the victims where the Court considers it
> appropriate, in accordance with the Rules of Procedure and Evidence.
> (see Other Internet Resources for link to the full
> text of the Rome Statute)
> 
> 



 The exact jurisprudence regulating victims' involvement is still
 being developed. Yet, it is already clear that the Rome statute
 gives them a far greater role in the international criminal process
 than they have had under traditional tribunals.




Despite the fact that the United States played a major role in the
negotiations surrounding the creation of the ICC, the U.S. initially
voted against the Rome Statute in 1998, before eventually signing in
December
 2000.[13]
 President George W. Bush revoked the
United States' signature to the Rome Statute, citing concerns that the
court could be used for political prosecution of American citizens,
particularly American service members who were serving abroad. The
U.S. Congress passed several bills during the Bush Administration
designed to shield American citizens from prosecution by the ICC. The
United States has also threatened to cut off foreign aid to countries
that have failed to sign Bilateral Immunity Agreements with the
U.S.




Although the Obama administration has been much less hostile towards
the ICC, going so far as to co-sponsor a UN Security Council
resolution which called for the ICC to investigate alleged crimes
against humanity committed by Muammar Gadaffi, the United States has
yet to join the
 ICC.[14]
 The United States continues to make
immunity for U.S. citizens a prerequisite to their ascension to the
ICC. 


### 2.2 Criticisms of war crime tribunals


 The employment of war crime tribunals has always been
controversial. In what follows some of the central criticisms of such
trials are examined. We will focus on substantive rather than
technical concerns. "Technical concerns" is understood as
the lack of resources, the reluctance of the international community
to provide material assistance (in direct funds or in apprehension of
suspects), the ability of defendants to destroy evidence, the
deplorable condition of the legal class in war torn countries, and
problems of translation and common language. While these certainly are
significant obstacles (as it was pointed out earlier, the operation of
the ICTY was almost undermined by such difficulties), they do not
challenge the rationale for using trials. The objections taken up
here, on the other hand, represent concerns that call into question
the coherence and fairness of the criminal courts as instruments of
political transition.


#### 2.2.1 Victor's Justice




According to some critics, post war tribunals, far from expressing a
commitment to the rule of law, are merely a charade in which winners
punish losers for the damage and suffering the war brought about. This
kind of cynicism about doing justice after war (and about the role of
justice in politics more generally) has ancient roots. In his
*History of the Peloponnesian War*, Thucydides (B.5 Ch.17)
imagines one of the Athenian generals offering a sobering reality
check to a Melian politician who does not understand why Athens must
conquer his tiny, politically neutral island:



>  we both alike know that in the discussion of human
> affairs the question of justice only enters where there is equal power
> to enforce it, and that the powerful exact what they can, and the weak
> grant what they must.
> 
> 


 Hermann Goring made a similar observation in a conversation with
Nuremberg's prison psychiatrist: "the victor will always be the
judge, and the vanquished the accused" (Bass 2002: 8).




The claim of victor's justice is difficult to
 dismiss.[15]
 After all, had the
Allies lost the war, many of their senior military and political
leaders would have gone on trial for the firebombing of Japanese and
German cities. Curtis LeMay and Robert McNamara have publicly admitted
as
 much.[16]
 And
yet it is worthwhile noting, with Gary Bass, that there is a
distinction between the circumstances under which a tribunal is
created and how decently and fairly it operates. In other words, a
tribunal that was set up after victory in order to punish the side
that lost, might still either succeed or fail to follow fair
procedures. And in so far as this is true, the retribution of some
victors may be preferable to that of others. As Bass writes: "it
is victory that makes justice possible but the fairness of the process
is what makes it justice" (Bass 2002: 329). And, he adds, even
though we may be cynical about the fact that Americans are putting
Germans on trial after they have defeated them, most of us, if given a
hypothetical choice, would still prefer to be tried by an American
rather than a Nazi court, because we assume it would be fairer (for a
useful series of essays on the Rwandan transition see Strauss and
Waldorf 2011). Simply imagine the kind of charges the Nazis would
bring against their defeated enemies: most likely, they would have not
sufficed with indicting the allies for the firebombing of German and
Japanese cities; they might also have charged then with protecting
Jews or with miscegenation, and perhaps punished them severely for
these charges. While an indictment for firebombing would have been
substantially sound, the latter accusations would have been based,
exclusively, on the Nazis warped racial theories. In other words, some
victors' justice can be substantively flawed. Here, then, is the main
advantage of allied over Nazi victor's justice: the Americans and
their partners prosecuted their defeated enemies for crimes that
really were crimes (for further discussions of victors' justice see
Minow 1998; Chang and Barker 2001; Peskin 2005).


#### 2.2.2 Retroactivity




A second important criticism of post war trials is that they hold
defendants responsible for acts that were not prohibited at the time
they were committed.




Many of the Nazi defendants at Nuremberg argued that no existing laws
or international standards banned their conduct during the war.
Consequently, they argued, there can be no legal basis for prosecuting
them. Such claims are based on a fundamental precept of the rule of
law: *Nullum Crimen, Nulla Poena Sine Lege* (no crime, no
punishment without a legal prohibition). The main strategy used to
counter these arguments at Nuremberg was "positivistic":
prosecutors strained to find sources in existing international law
that did forbid aggressive war, and then moved to associate many of
the other crimes for which the Nazis were accused with the waging of
such war (Minow 1998: 33). A related difficulty arose when the
prosecution looked for a legal doctrine that would allow them to
convict a large group of people for belonging to the Nazi war
machine. Here, too, a creative positivistic solution was found: One of
Stimson's aids, colonel Murray Bernays, devised the idea that the
Nazis would be tried as part of a criminal conspiracy. The advantage
of such a strategy was that it required nothing more than the
conviction of specific organizations of the charges (the SA, SS,
Gestapo among others) in order to hold all their members
responsible. As Bass puts it:



>  once these organizations had been convicted, any
> member of them could be swiftly punished: instead of proving
> individual guilt... [prosecutors] would only have to provide that
> the defendant had been a member of a criminal group activities. (Bass
> 2002: 171; I am grateful to Thomas Pogge for this
> point)
> 
> 


 The severity of the problem of retroactivity decreased after the
Nuremberg tribunal established the precedent that there was no need
for a highly specific prohibition in order to be held responsible
before an international criminal court. And yet, the tribunals for
Yugoslavia and Rwanda still faced some problems of retroactivity when
it came to deciding whether ethnic cleansing constituted genocide and
what kind of intent was required for a genocide conviction (Minow
1998: 34-35).


 While prosecutors in Nuremberg settled on a positivistic strategy
for countering the claims of retroactivity made by the defendants,
another possibility for rejecting such arguments should be mentioned.
This alternative is based in the "natural law" tradition.
On this view, the response the Nazi defendants should have been given
is, quite simply, that there are things that one does not do, or can
expect severe punishment for doing, whether they are explicitly
forbidden or not. Whether such severe actions defy "the moral
law" to use the somewhat antiquated language of the classical
natural lawyers, or whether they simply offend fundamental
sensibilities of any civilized human being, the upshot is the same: at
the extreme reaches of human behavior illegality does not necessarily
depend on a prior legal prohibition. It was this kind of argument that
the lead British prosecutor in Nuremberg, Hartley Shawcross, had in
mind when he exclaimed in response to one of the iterations of the
retroactivity complaint:



>  I suppose the first person ever charged with murder
> might have said: "now see here. You can't do that. Murder
> hasn't been made a crime yet". (Persico 1994:
> 138)
> 
> 


#### 2.2.3 Selectivity


 A third important complaint against war crime tribunals maintains
that they frequently fail to indict all of those who were involved in
committing atrocities. According to this charge, courts find it easier
to prosecute lower level officials and military personnel, often
leaving the more senior figures who devised the violent policies (but
do not have actual "blood on their hands") untouched
(Minow 1998: 40-41). To the extent that this complaint is well
founded it is devastating, as it suggests that war crime tribunals do
not result in a full or coherent exercise of retributive justice (for
a comprehensive account see Cryer 2005). The principle of
"Command Responsibility" (CR) originally devised at
Nuremberg, and used extensively by the ICTY, has been employed, quite
effectively, in order to counter complaints of selectivity. CR allows
prosecutors to indict senior officials exclusively on the basis of
their military or political leadership role (given the duties of
supervision and control attached to that role).




Thus, the ICTY has been able to convict Serbian officers for war
crimes because they did not prevent or curtail activities in which
their troops were engaged. In an especially striking expansion of CR,
a Bosnian Croat regional commander, Tihomir Blaskic, was convicted by
the trial chamber of the ICTY of murder and other crimes against
humanity, for atrocities that took place in the village of
Ahmichi. The charges did not allege direct involvement or even turning
a blind eye to the activities of subordinates, but, rather, focused on
Blaskic's failure to investigate after the massacre was brought to his
attention. His unwillingness to look into the events was equated by
the court with responsibility for direct killing. In 2004 the appeals
chamber of the ICTY rejected this interpretation of CR and overturned
the relevant part of the conviction.




While CR can be instrumental for moving up the chain of command, it
also comes into conflict with the legalistic premise underlying war
crime tribunals. A criminal trial traditionally establishes individual
responsibility by presenting direct evidence against the defendant. CR
allows conviction and punishment based on a philosophical construct
rather than on the garnering of such evidence. The construct, roughly
speaking, is that certain roles come with built in accountability for
the actions of others, whether or not the individual who holds the
role was aware of these actions. Criminal law doctrine is, to say the
least, suspicious of such a separation between intent and culpability,
especially when it comes to very serious offenses (lesser offenses can
be established by proving the defendant was reckless or indifferent).
This tension points to a problem at the heart of international
criminal law: does the unique nature of mass atrocity, wherein
numerous people harm others with differing degrees of acquiescence and
direction from a large bureaucratic class, really lend itself to the
legalistic commitment to individualizing guilt on the basis of direct
evidence? Or do the distinct features of such crimes require relaxing
our standards of individual responsibility so as to implicate the
entire state structure that made the atrocities
 possible?[17]
 If the latter, it
may be difficult to hold fast to the justification of such trials as
expressing a firm commitment to legalism and the idea of the rule
 of
law.[18]





Other significant (if less conceptually interesting) criticisms of the
international criminal courts hold that they do not focus sufficiently
on the suffering of victims, concentrating, instead, on establishing
the guilt of
 perpetrators),[19]
 that the proceeding tend to become
technical and tedious, thus trivializing the horrors
 being
discussed,[20]

that there can be a discrepancy between the (Western) cultural norms
central to legalism and the local traditions of the society in which
atrocities took
 place,[21]
 and that, in light of the repeated
occurrence of genocide in the 20th century, the practice of
international criminal law does not show great promise
 of
deterrence.[22]
Leaders, such as Bashar al-Assad and Omar
al-Bashir, who have the backing of major powers, have virtual
impunity. Of course it is important to prosecute former heads of
state, so as to demonstrate that political seniority is no guarantee
of immunity from justice. The international tribunals serve a
pedagogical purpose, drawing attention to pertinent issues such as
child conscription.


## 3. Truth Commissions


### 3.1 Historical Background




The structural and political shortcomings of war crime trials, as
outlined in the previous section, have led policy makers in war torn
countries to turn to other measures of transitional justice. The most
important among these is the non-judicial truth commission.




Priscilla Hayner (2002), in her landmark book on truth commissions,
enumerates four characteristics typical of these bodies:


1. They deal with the past
2. They investigate continued patterns of abuses and not specific cases
3. They operate for up to two years and then submit reports
summarizing their findings and,
4. They are usually official bodies sanctioned by the state.


 These commissions, Hayner continues, most often have some or all
of the following goals: unearthing, clarifying and formally
acknowledging past abuses, responding to the needs of victims, helping
create a culture of accountability, outlining institutional
responsibility and possible reforms, advancing the prospects of
reconciliation and reducing conflict over the past (Hayner 2002:
24).




While truth commissions have fewer coercive powers than courts (they
cannot compel governments to carry out their recommendations, they
have no authority to punish etc.), their mandate for investigating the
broader pattern of abuses, and their tendency to put the victims at
the center of their proceeding, gives these bodies a great degree of
moral credibility and legitimacy.




The work of South Africa's Truth and Reconciliation Commission
(hereafter TRC) has sparked a great deal of interest in the use of
truth commissions after war. The celebrity of its chair, Desmond Tutu,
the massive scale of the public hearings it held, the intensive media
coverage, and its controversial amnesty-for-truth mechanism, generated
a great deal of international curiosity. Ever since the TRC completed
its hearings and published its report, nations facing a transition to
democracy have consistently asked themselves whether they too should
use truth commissions to confront past abuses. Some scholars even go
so far as to say that the truth commission has now replaced criminal
prosecution as the most important norm of international justice (see,
for example, Ben-Josef Hirsch 2007).




While the TRC has become paradigmatic of truth commissions, it is
worthwhile noting that it was not the first such body. Argentina,
Chile, and El Salvador all employed relatively effective truth
commissions during the 1980's and early
 1990's.[23]





These efforts provided both inspiration and valuable lessons for the
designers of the South African
 body.[24]





In Argentina, a truth commission was set up to investigate the abuses
committed by the military junta during the country's "dirty
war" (1976-1983). It is estimated that up to 30,000
suspected "subversives" were
"disappeared"--abducted, tortured and disposed of
secretly--by security forces during those years. Unlike the South
African TRC, the Argentinean body, officially named "National
Commission on the Disappearance of Persons", did not hold public
hearings. The commission also lacked the authority and incentive
structure to compel cooperation from the military. And yet, it was
able to produce a substantive report. More than 7000 statements were
taken, 1500 of which were given by survivors of military detention
camps. The commission focused on locating and exposing military
detention and torture centers. Much of the evidence it gathered was
handed over to prosecutors, eventually aiding in the convictions of
several high-ranking officers. The truth commission's report, titled
*Never Again* (*Nunca Mas*), was published in 1984 and
has become one of the best-selling books in Argentinean history.




Seven years later, Chile's National Commission on Truth and
Reconciliation published a report documenting human rights abuses
committed by the Chilean army during General Augusto Pinochet's
17-year reign. As in Argentina, Chile's security forces practiced
routine torture, abductions and extrajudicial executions. The abuses
were especially severe in the first few years of the dictatorship. In
1978 Pinochet issued a sweeping amnesty order, protecting all members
of the security forces. This amnesty created a complex constitutional
environment for the truth commission. The commission, chaired by
former senator Raul Retting, consisted of an equal number of Pinochet
supporters and critics. Its mandate was defined in relatively narrow
terms, focusing on executions, disappearances and cases of torture
that resulted in death (leaving out a large number of torture
survivors). Like its Argentinean counterpart, the commission had no
way to compel members of the security forces to testify. The
Commissioners looked into 3400 cases and issued an 1800 page report in
February of 1991 strongly (and, significantly, unanimously) condemning
Pinochet and his generals. The impact of the report was weakened by a
series of armed attacks carried out by left leaning militants shortly
after its publication. In spite of the limited public attention it
received at the time, the report was instrumental in creating a
reparations program for the relatives of Pinochet's victims. The
commission's work was also useful in providing evidence to support the
Spanish extradition request that eventually led to Pinochet's arrest
in Britain. Pinochet was later returned to Chile, and died before he
could be convicted of any crimes.


 El Salvador's truth commission was probably the least successful
of the three. The commission was created to investigate abuses carried
out in the course of the civil war between government forces and FMLN
guerrillas. According to some estimates, the 12-year war
(1980-1992) claimed the lives of 75,000 citizens. As in
Argentina and Chile, the military engaged in executions, torture, and
abductions, in addition to large-scale massacres. The El Salvadorian
commission operated for 8 months. Appointed by the Secretary General
of the United Nations, its members included former Colombian President
Belisario Betancur, former President of the Inter American Court of
Human Rights Thomas Buergenthal, and former Minister of Foreign
Affairs of Venezuela Reinaldo Figueredo Planchart. The animosity and
diffidence between the former combatants was such that no Salvadorians
were allowed to serve as commissioners.


 The commission gathered testimony on more than 7000 cases of
severe human rights violations. Its final report, titled "From
Madness to Hope", outlined a set of harsh conclusions against 40
government and military officials and stated that the vast majority of
atrocities had been committed by government backed security forces
(rather than by FMLN fighters). Very shortly after the report's
publication, a national amnesty law was passed, rendering many of the
commission's recommendations irrelevant. However, the report was
helpful in shaming and eventually removing from service some of the
military officials accused of especially egregious abuses.




Three years after the release of El Salvador's report, On April 15,
1996, Archbishop Desmond Tutu, the head of South Africa's Anglican
Church, addressed a crowd gathered at East London's city hall. 



> 
> We are charged to unearth the truth about our dark past,
> 
> 



 he told his listeners,



>  and to lay the ghosts of that past to rest so that
> they will not return to haunt us; and that we will thereby contribute
> to the healing of the traumatized and the wounded--for all of us
> in South Africa are wounded people. (Meredith 1999:
> 3)
> 
> 



 Thus began South Africa's controversial experiment in transitional
 
 justice.[25]





As they debated how to manage the transition from apartheid,
negotiators on behalf of the African National Congress (hereafter ANC)
and the outgoing National Party clashed repeatedly on the question of
how to address human rights abuses committed during the apartheid era.
In the negotiations leading up to the 1993 interim constitution, which
laid down the terms of the transition, the most contentious issue
concerned the question of amnesty. After a great deal of wrangling,
the two sides agreed to add a postamble to the constitution containing
the following language:



>  in order to advance... reconciliation and
> reconstruction, amnesty shall be granted in respect of acts,
> omissions, and offenses associated with political objectives and
> committed in the course of the conflicts of the past."
> (Postamble to South Africa's Interim Constitution of 1993 as quoted in
> Meredith 1999: 20-21)
> 
> 


 Many ANC supporters, who wanted to see apartheid officials brought
before Nuremberg style war crime tribunals, were understandably upset
by the arrangement. Nelson Mandela, who insisted on the importance of
steering clear of "victors' justice", remained adamant
about the need for some kind of accountability for apartheid's
crimes. Without such reckoning, he threatened, the unaddressed
atrocities of the past would live with South Africans like a
"festering sore" (Meredith 1999: 18).


 The convergence between these two commitments--to amnesty on
the one hand and to accountability on the other--was to result in
the establishment of the TRC.




The process that led to the commission's creation was characterized by
an unprecedented degree of transparency and public participation.
During 1994, two major conferences were held to lay the groundwork for
the TRC's work. Both were organized by Alex Boraine, an Anti-Apartheid
activist who served as president of the South African Methodist
Church, MP for the progressive party, and the director of important
civil society NGOs. The first of these conferences focused on the
lessons of political transitions in Latin America and Eastern Europe
(Proceedings were published in Boraine et al. 1994). The second
solicited input from stakeholders inside South Africa (Proceedings
were published in Boraine et al. 1995). After the conferences, South
Africa's parliament began deliberating on the National Unity and
Reconciliation Act, which would set up the commission. The
Parliamentary Standing Committee on Justice held extended public
hearings asking individuals, political parties and NGOs for their
advice on the design of the TRC. The law was finally passed, after a
great deal of bickering and debate, in May of 1995, a year or so after
it was first presented. The TRC thus became the first commission of
its kind to be created through a parliamentary process rather than
executive
 decree.[26]
 Whether by design or inertia, this open,
deliberative approach was also applied to the selection of commission
members. Nominees were suggested by NGOs, churches, and political
parties, and were then interviewed in public by the selection
committee. Finally, the cabinet and president chose the commissioners
from a short list.




The Promotion of National Unity and Reconciliation Act set the
following three goals for the commission:



>  to develop a complete picture of the gross violations
> of human rights that took place in and came through the conflicts of
> the past; to restore to victims their human and civil dignity by
> letting them tell their stories and recommending how they could be
> assisted; and to consider granting amnesty to those perpetrators who
> carried out their abuses for political reasons and who gave full
> accountings to their actions to the commission. (Graybill 2002:
> 6).
> 
> 




The commission would respect the ANC's promise to offer amnesties, but
the reprieve would not be granted automatically. It would, rather, be
linked to a demand for full disclosure from perpetrators. Those
seeking amnesty would have to apply for it, provide full details about
what they had done, and establish that their activities were
politically motivated (rather than the result of greed,
 sadism
etc.).[27]

Applicants would not, however, be required to apologize or otherwise
express regret. Furthermore, the arrangement would eliminate not only
criminal responsibility but also civil
 liability.[28]
 Successful
applicants could be neither charged nor sued for their conduct during
the apartheid years. The commission would be charged with
investigating abuses that took place between March 1, 1960 and May 10,
1994.




The commission was divided into three committees in order to realize
the aims set out by the law: the committee on human rights violations,
the committee on amnesty, and the committee on reparation and
rehabilitation. The first would collect testimony and conduct public
hearings regarding the abuses. The second would consider applications
for amnesty from members of the security forces and ANC, and determine
whether the acts in question were committed in a political context and
whether applicants had provided full disclosure about them. The third
would come up with recommendations and criteria for whom to compensate
and how.




The TRC's authority and resources were unprecedented in the history of
truth commissions. It had the power to subpoena witnesses and the
authority to order searches and seizures. It had a witness protection
program, 300 staff members, and an annual budget of 18 million
dollars. Its proceedings were broadcast on a daily basis on both
radio and television, and were widely covered by the printed
press. During the course of its tenure, the commission took testimony
from more than 22,000 victims and witnesses, hearing upwards of 2,000
of them in public.




Unsurprisingly, the main controversy surrounding the commission's work
concerned its amnesty-granting powers. The opportunity afforded to
perpetrators of egregious human rights abuses to walk away from
prosecution enraged many black South Africans who wanted to see those
who had tormented them and their families put behind bars. As far as
many blacks were concerned, the TRC allowed some of apartheid's worst
offenders to "get away with
 murder."[29]
 As Martin Meredith
(1999: 315) puts it in his superb survey of the commission's
tenure:



>  ...the work of the TRC provoked...anger in
> parts of the black community...particularly over the way security
> force operatives responsible for heinous crimes were given freedom in
> exchange for a bit of truth telling, while victims and their families
> were denied access to the courts. What many wanted more than truth was
> justice--prosecution in the courts and prison
> sentences.
> 
> 



 Many academic observers of South Africa's transition were dismayed as
 well, remarking that neither political necessity nor the attempt to
 create social solidarity can justify the kind of sacrifices of
 retributive justice the TRC's work entailed.




The outrage is more than understandable, when one considers cases like
that of Vlakplass commander Dirk Coetzee who testified to killing ANC
activist Sizwe Kondile and burning his body on an open bonfire.
Coetzee and his men stood by, drinking beers and smoking for more than
seven hours, until nothing remained of Kondile. The sight of such a
man walking away from his testimony cannot but turn one's stomach.


 The international community has continued to experiment with truth
commissions as a means to achieve transitional justice. On July 13,
2001, the United Nations Transitional Administration in East Timor
(UNTAET) established the Commission for Reception, Truth, and
Reconciliation (CRTR). The purpose of this commission is to promote
"national reconciliation and healing" after decades of
political conflict following the 1975 invasion and subsequent
occupation of East Timor by Indonesia.




Following a failed attempt to annex East Timor in 1999,
Indonesia-supported militants are suspected of killing over 1,000
supporters of an independent East Timor and caused hundreds of
thousands of civilians to flee their homes (Stahn 2001).




In 2011, Brazil also created a truth commission to investigate and
publicize human rights abuses that occurred during the rule of
Brazil's military dictatorship from 1964-1985. The seven-person
commission was provided with a two-year mandate to investigate human
rights abuses and to compile a file report to be released publicly.
However, doubts regarding the truth commission remain as a result of a
1979 law that provided amnesty to many of those responsible for crimes
committed during the military regime's
 rule.[30]



 Much of the scholarly literature on the TRC in South Africa
centers on the question of justification, on the attempt to locate a
rationale which might make sense of an arrangement that goes against a
great deal of our untrained intuitions about justice. "If
justice requires the prosecution and punishment of those who commit
gross human rights violations", writes Elizabeth Kiss (2000:
68), "then the amnesty offered by the TRC violates justice. Can
the TRC be defended against, or in spite of, this criticism?"
Similarly, Amy Gutmann and Dennis Thompson (2000: 22) point out
that:



>  In a democratic society, and especially in a society
> that is trying to overcome injustices of the past, trading criminal
> justice for a general social benefit such as social reconciliation
> requires a moral defense if it is to be defensible. 
> 
> 



Kent Greenwalt (2000: 191) echoes the same concern when he reminds us
that,



>  those who decide whether to include amnesty as an
> adjunct to a truth commission must face two basic issues. Does
> granting amnesty to murderers and torturers involve doing injustice?
> What might justify the state's doing such an
> injustice?
> 
> 




In what follows, we offer a critical survey of some of the most
important philosophical justifications of the TRC. The discussion
applies to any truth commission with comparable powers (this
discussion is based on Eisikovits 2004, 2006).


### 3.2 Justifying Truth Commissions


#### 3.2.1 Deliberative democracy




Gutmann and Thompson (2000) argue that a justification of a truth
commission needs to meet three criteria relevant for the justification
of all democratic institutions: it must be moral in principle,
inclusive, and moral in practice. The first condition rules out what
the authors call the *realist* justification--the claim
that the compromise embodied in the TRC was necessary in order to
avoid a civil war. The second demands that the justification employ
reasons that are "broadly accessible and therefore inclusive of
as many people as possible" (2000: 23). The last requires that
the justification be based on reasons that "are to the extent
possible embodied or exemplified by the commission's own
proceedings" (2000: 23). The justification that most fully meets
these three requirements, argue the authors, is one rooted in the
concepts of deliberative democracy and reciprocity. Central to
deliberative democracy is



>  the idea that citizens and officials must justify any
> demands for collective action by giving reasons that can be accepted
> by those who are bound by the action.... (2000:
> 35-36)
> 
> 



 This, in turn, presupposes the notion of reciprocity



>  which asks citizens to try to justify their political
> views to one another, and to treat with respect those who
> make...efforts to engage in this mutual enterprise even when they
> cannot resolve their disagreements" (2000: 36).
> 
> 




To the extent that a truth commission promotes such reciprocal
exchanges it is morally justifiable, because such an exchange is, in
itself, a moral good. The first condition is thus met. A commission
based in a conception of deliberative democracy is also inclusive
since the principle of reciprocity involves appeals to reasons that
make sense to a large number of participants in the political
process:



>  the standard of reciprocity also satisfies the second
> requirement of justification by providing an inclusive perspective. A
> reciprocal perspective is one that cannot be reasonably rejected by
> any citizen committed to democracy because it requires only that each
> person seek terms of cooperation that respect all as free and equal
> citizens. (2000: 37)
> 
> 



 Finally, a commission committed to the principle of reciprocity is
 likely to function in a way that embodies that principle.



>  Such a commission practices what it preaches about the
> democratic society that it is trying to help create. Reciprocity
> serves as a guide... for the commission itself, calling on the
> commissioners and the testifiers to practice some of the skills and
> the virtues of the democratic society they are striving to
> create... the openly participatory process by which members and
> staff of the TRC were appointed, and the generally public process in
> which its proceedings were conducted, demonstrated its own commitment
> to democratic practices. (2000: 37)
> 
> 


 Reciprocity, argue the authors, implies another
commitment--to "the economy of moral disagreement."
Citizens must justify their positions by using the least controversial
rationale available. The principle of economy encourages those
engaged in deliberation to look for justifying reasons that overlap
with rather than contradict beliefs held by others. To be morally
justifiable under a conception of deliberative democracy, a truth
commission needs to economize on disagreement. An example of
economizing in the work of South Africa's TRC is the decision not to
grant blanket amnesties and to insist on the indictment of some of the
worst perpetrators.




The proposed justification presents several difficulties. First, it
assumes that a justification of truth commissions must meet the same
demands that justifications of existing democratic institutions need
to satisfy. But a truth commission is not a democratic institution.
Rather, it is an institution that is meant to facilitate the
transition of a society to democracy. More often than not, countries
undergoing such transitions lack a democratic tradition, have no
history of significant public dialogue, and have not secured the
minimal economic conditions required for meaningful political
participation. Under these circumstances, expecting truth commissions
to reflect and promote the ideals of deliberative democracy might be
too ambitious.




Second, the justification is not specific enough. It is not clear why
deliberative democracy, and its accompanying attributes of reciprocity
and minimizing disagreement, justify truth commissions any more than
other transitional instruments. Thus, for example, a war crimes
tribunal may generate as much public discussion as a truth commission,
it may be based on reasons or principles as widely accessible as those
underlying a truth commission, and it may insist on trying only the
worst offenders, thus economizing on moral disagreements. It seems, in
other words, that the deliberative democracy-based argument justifies
more than one transitional policy.




Finally, it is questionable whether the TRC can be justified through a
deliberative democracy rationale at all. The commission did not embody
a particularly open, deliberative stance in its operation. Though
many of its hearings were public, some of the important procedures
associated with them were confidential by default. Thus, for example,
the proceedings of the amnesty commission were public, but the amnesty
applications themselves, as well as the supporting documentation,
remained confidential until declassified by the
commission. Furthermore, the commission was exempt from standard rules
of legal procedure and evidence. Perpetrators named in the testimony
of victims, or in the testimony of other perpetrators, were not given
an opportunity to defend themselves; second-hand information, which a
traditional court would have disqualified as hearsay, was admitted,
etc. Now a commission making these sorts of exceptions to the precepts
of procedural justice can still be justified (for example by showing
that these exceptions were necessary for establishing the chain of
responsibility leading to the higher ranks of government). But it is
doubtful whether the best way to justify it is by invoking a
conception of deliberative democracy. For public deliberation to be
meaningful and substantial, strong protections of procedural justice
must be in place. As mentioned previously, these were lacking in the
case of the TRC.


#### 3.2.2 Justice as Recognition




A second justification holds that truth commissions, by focusing on
victims and providing them with the opportunity to tell their stories
to a sympathetic forum, recognize victims as moral agents with stories
worth telling. As Kiss (2000: 73) puts it,



>  providing a platform for victims is one of the core
> tasks of truth commissions, not merely as a way of obtaining
> information but also from the standpoint of justice...Those whose
> lives were shattered are entitled to have their suffering acknowledged
> and their dignity affirmed, to know that their "pain is real and
> worthy of attention"... We affirm the dignity and agency of
> those who have been brutalized by attending to their voices and making
> their stories a part of the historical record.
> 
> 




The TRC did not adhere to the strict, skeptical approach to witnesses
prevalent in law courts. Standard laws of evidence were
relaxed. Commissioners offered unusual gestures of acknowledgement
such as rising when the witnesses entered the courtroom, visiting the
sites of atrocities, and participating in public reburials (for more
detail see Kiss 2000: 73). These practices were aimed at making the
process *about* the victims of apartheid; witnesses were
assumed to be speaking the truth, and were treated as people with
valuable tales to tell and lessons to teach.


 The justification of the TRC sketched above is a powerful one. A
transition from mass atrocity into civil society, if it is to be
stable and lasting, requires that the value of the individual lives of
an entire class--the class of victims--be affirmed. By
allowing victims to testify in an uninterrupted manner, and by
creating a setting in which their testimonies were presumed to be
true, the hearings of the TRC in South Africa went beyond establishing
the crimes of the security forces, or presenting the hardships of
everyday life under apartheid. They also posited blacks, for the first
time, as persons whose stories ought to be heard with care and
respect. In other words, not only the content of the testimonies
before the TRC was of significance; the mere act of blacks testifying
was transformative as well. The class of whites, the majority of whom
had supposed that a black man or woman cannot be the bearer of
legitimate, significant information, was made to think again.




However, the argument from recognition raises a serious difficulty.
Some victims argued that the restoration of their dignity requires
that those who hurt them be punished; that in order to feel worthy of
respect, they must know their injuries merit the criminal law's
protection. For such victims, dignity is manifested not by the
capacity to testify, but primarily by the commitment of the state to
apply its coercive power on their behalf. For some of us, in other
words, the currency of recognition is punishment rather than
storytelling; being recognized as a human being again can consist,
first and foremost, in knowing that one is part of a civic zone
protected by law, where the use of violence against her is met with
strict sanctions. Under this understanding, the newfound capacity to
testify, even if combined with promises of future protection by the
law, simply does not cut it.


#### 3.2.3 More truth


 Some defenders of truth commissions claim that these bodies are
better than trials at producing comprehensive accounts of past abuses.
This superiority, they say, justifies compromises in retributive
justice. In the case of the TRC, it was not only the dismissal of
regular rules of evidence that allowed commissioners to unearth more
information. The commission's amnesty-for-truth mechanism created an
incentive for perpetrators to come forward. Once they started to do
so, a domino effect resulted: offenders who were exposed in the
testimony of their colleagues rushed to testify lest they be indicted.
Furthermore, since the commission was authorized to deny amnesty to
anyone who had not provided "full disclosure", those who
came before it tried to give as much detail as they could.


 The "more truth" justification is a strong one. Two
observations are, however, in order. First, as some critics of the TRC
have noted, its choice to focus on gross human rights
violations--on dramatic stories of suffering, has obscured some
of the institutional aspects of apartheid. Thus, the interconnections
between business and the security forces, the wildly discriminatory
practices of many work places and the support that many white media
outlets lent authorities in masking the practices of apartheid were
largely overlooked by the commission's work. Insofar as these, too,
are aspects of the truth, they were not revealed by the TRC.




Second, the fact that the TRC was the result of a political compromise
meant that there were some areas in which it treaded carefully. Some
worm cans remained closed. In a recent book on the history of
apartheid, Terry Bell (2003: 4) mentions one remarkable example: as
Fredrick de Klerk, South Africa's last white leader, was heading for
Oslo to receive the Nobel peace prize in 1993, he ordered a strike on
a house allegedly housing militants from the Pan African Congress
liberation group. A police death squad ended up killing five teenagers
sleeping in a private home in the town of Umtata. The incident was
never investigated by the TRC.


#### 3.2.4 Forgiveness




It has become fashionable of late to speak about the importance of
forgiveness in politics. Forgiveness is said to be the only
disposition that allows us to break free of the endless cycle of blow
and counter blow characteristic of ethnic conflict. We are told that
forgiving is our only chance to put to rest a tortured, complicated
history of assaults and recriminations. One celebrated practitioner of
political forgiveness, the Archbishop Desmond Tutu, called his book on
South Africa's Truth and Reconciliation Commission *No Future
without Forgiveness*. As the title suggests, Tutu argues that it
is only by forgoing resentment and learning to forgive each other that
South Africans could ever create a viable democracy. Can the prospects
and benefits of forgiveness justify the tradeoff between truth and
(retributive) justice involved in the TRC's
 work?[31]



 The most prevalent argument in favor of political forgiveness
concerns its potential to release victims and wrongdoers from the
effects of vindictiveness. A desire for revenge can generate a
never-ending violent cycle, trapping both sides in a dynamic of blow
and response, eventually destroying all those involved. As Gandhi
famously put it, "an eye for an eye can make the whole world
blind."


 But forgiveness is not the only way to quell the desire for
revenge. We can steer clear of revenge without forgiving. Victims
might seek legal rather than private justice. They might agree to
institutionalize their vindictive passions through the use of the
courts. As Martha Minow (1998: 11) puts it, it is possible "to
transfer the responsibilities for apportioning blame and punishment
from victims to public bodies acting according to the rule of
law." This is, in essence, the rationale behind the attempts to
expand the authority and centrality of the international criminal
courts in recent decades.




Victims can (and very often do) simply move away from the scene of the
trauma rather than seek revenge or engage in forgiveness. In recent
years there has been a quiet exodus of approximately 100,000
Palestinians from the West Bank and Gaza, to Europe and North
America. Most Holocaust survivors, uninterested in revenge or
forgiveness, simply moved thousands of miles away from the sites of
their horrific memories and swore never to set foot in the countries
that had persecuted them. Others replace revenge with commemoration,
dedicating themselves to the creation and maintenance of monuments and
museums. Thus, for example, many of those handing out the ID cards at
the Holocaust Museum in Washington D.C. are holocaust survivors, as
are many of the guides in Jerusalem's Yad Vashem memorial.




The basic point, to reiterate, is this: vengeance can, indeed, be a
very dangerous thing. But one does not have to advocate forgiveness in
order to avoid it. There are other ways to combat it, ways that might
be free of some of the complications (more on this below) associated
with forgiveness.




Many commentators assume that forgiving is the exclusive prerogative
of victims. On this view, it is problematic to define a process of
political reconciliation in terms of forgiveness, because forgiving is
a very private business that cannot be promoted as a policy. While
this position is intuitively powerful, we will take a somewhat more
nuanced stance. Let us call it the "fading prerogative"
view: While forgiving is not exclusively up to victims, it certainly
makes less sense to talk about forgiveness the further away we move
from the partly directly injured. If *X* gets hurt in a bus
bombing, she might forgive the person who planned the attack. It can
make sense for her parents to forgive him too, though it is not
obvious that they would be forgiving the same thing (the nature of the
parents' injury is different from *X*'s: the extent of her
physical pain was greater than theirs; the degree of their emotional
anguish might have well been higher than hers). It would be more
problematic to speak of *X*'s neighbors forgiving the bus bomber
for *X*'s injuries, and even more problematic to speak of people
whom *X* has never met forgiving the bomber. Forgiveness, then,
might not be the exclusive prerogative of victims, but the entitlement
to grant it certainly seems to fade as we move away from them. There
is, in other words, a limited radius in which it makes sense to speak
of forgiveness. This does not, of course, mean that we cannot think of
political reconciliation in terms of forgiveness. It only means that
such an approach would exclude a (potentially) significant part of the
community from the process.




There are other difficulties with making forgiveness into a political
goal. A policy encouraging victims to forgive those who have harmed
them risks adding insult to their injuries; it can induce a sense of
moral inadequacy on top of the devastation already suffered. A
victim's reaction to such a policy might run something like this:



>  isn't it enough that I had to go through all this? Now
> you are expecting me to forgive the person who did it? Now you are
> placing the moral burden on me?
> 
> 


 Such a reaction suggests that demands for forgiveness might
exacerbate rather than quell resentment--both towards the
offender, to whom the victim does not want to owe a moral debt, and
towards the state that makes such demands. Ironically, then, a policy
advocating forgiveness might undermine one of its own aims--the
reduction of vindictive and resentful passions after conflict.


 Finally, it is worth remembering that forgiveness is a deeply
Christian notion. As J.G. Williams puts it: "forgiveness is at
the religious, theological and ethical core of the Christian
tradition" (Rye et al. 2000: 31). The term does have an
important role in both Judaism and Islam, but its status in these
faiths is more ambivalent. Thus, for example, while Judaism does,
under some conditions, impose a duty to forgive, it is not clear
whether this duty must be exercised towards non-Jews. Furthermore,
Judaism, unlike Christianity, discourages unconditional
forgiveness. Islamic doctrine does state that forgiveness is superior
to revenge, but permits retributive practices, and even feuding under
some circumstances. Unlike the famous Christian teaching encouraging
the turning of the other cheek, the Koran recommends a middle way
between absolute vindictiveness and absolute forgiving. It reads:



>  let harm be requited by an equal harm, though anyone
> who forgives and puts things right will have his reward from God
> Himself--He does not like those who do wrong. (al-Shura 42:40)
> (Haleem, M., 2004))
> 
> 



 The Koran also makes a division between forgivable and unforgivable
 sins, mentioning the trespass of *shirk*--the recognition
 of divinities other than Allah--as a prime example of the latter
 category. Finally, both Judaism and Islam allow for forgiveness
 without the resumption of relations between victim and offender,
 while Christianity insists that the possibility of full restoration
 of previous relations be left open.




Since the demands and centrality of forgiveness vary between the
different faiths, it might be problematic to include the term as part
of our notion of political reconciliation, especially in cases of
inter-religious conflict. Even if the employment of the term were not
offensive to anyone, it is likely that different religious parties
would be speaking of different things when they refer to forgiveness.
This, it strikes me, can create more confusion than benefit.


## 4. Lustration


### 4.1 Historical Background


Lustration is the process of regulating how former government
officials can participate in post-conflict government and social
structures. In particular, lustration involves the screening, barring,
and removal of public officials from public positions in the new
democratic system as a form of administrative justice.


The concept is based on the ancient Roman lustrum rituals, a
cleansing or purification of an individual or community through the
removal of pollution. Lustration is often associated with the
transition from an authoritarian regime to democratic governance, and
in particular with both the denazification of post-WWII Germany and
the post-communist transition to democracy in Eastern Europe following
the collapse of the Soviet Union. Lustration was originally
implemented as a part of the administrative reforms imposed by the
Allies in post-WWII Germany and Japan, and by states in Western Europe
that were formerly occupied by the Nazi regime.


Following the end of WWII, the Allies assigned themselves the task
of purging all traces of Nazism from both German government and
society, the first large-scale attempt at lustration in the modern
era. The Big Three Allies (the Soviet Union, United Kingdom, and
United States) agreed on a plan of action to denazify Germany at the
Tripartite Conference in Potsdam. The Potsdam Agreement, released on
August 2, 1945, set the groundwork for Allied efforts at purging
Nazism and its adherents from Germany. The Potsdam Agreement required
the Control Council (comprised of the four Allied Military Governors
in occupied Germany) to



> 
>  destroy the National Socialist Party and its
> affiliated and supervised organizations, to dissolve all Nazi
> institutions, to ensure that they are not revived in any form, and to
> prevent all Nazi and military activity or
> propaganda. (II.A.3.iii)
> 
> 



 Furthermore, the subsequent Control Council Law No. 2 declared that
 the Nazi Party and all affiliates, totaling more than 60 specific
 organizations, were to be dismantled and outlawed.


The process of denazification, however, was not limited to the
destruction of Nazi organizations. The Potsdam Agreement also
abolished all police organizations that monitored and controlled
political activity for the Nazi Party and revoked all Nazi-era
legislation that established legally sanctioned "discrimination
on the grounds of race, creed, or political opinion"
(II.A.4).


One of the most ambitious and wide-scale activities of the Control
Council was the arrest of those involved with the National Socialist
Party and its affiliates, and those who actively supported Nazism
during the war. The Allied arrest programs called for the automatic
detention of anyone associated with the Nazi police and security
services, officers holding the rank of major or higher in select
branches of the armed forces, high-ranking members of the Nazi Party,
and high ranking members of the German
 government.[32]



Controversially, the Potsdam Agreement also called for the removal
of Nazis from both "public and semi-public office, and from
positions of responsibility in important private undertakings"
(II.A.6). Although this policy was both harsh and ambitious, it meshed
with the Allied goal of both destroying the National Socialist Party
and ensuring that it is "not revived in any form"
(II.A.3.iii). The process of denazification also included the
confiscation of all wealth and property associated with Nazi
organizations and high-ranking Nazi officials, and a complete purging
of the educational system of all Nazis, Nazi materials, and
objectionable courses. The Allied military government also prohibited
the display of Nazi "uniforms and insignia, salutes, medals,
anthems, and music" (Plischke 1947), a policy that remained in
force even after political control was returned to the Germans.


Despite the enormous amount of resources and energy devoted to the
denazification of Germany, there were several problems associated with
the process. One of the biggest impediments to the complete
denazification of post-WWII Germany was the lack of qualified
anti-Nazis to staff the government, and in particular the court system
responsible for trying ex-Nazis. The shortage of qualified
professionals with "clean records", combined with
interference from German officials and indifference from American
officers, led to disappointment among many of those tasked with
ensuring the complete removal of Nazism and its adherents from
 German
government.[33]



Following the collapse of the Soviet Union and their emergence as
independent nation-states, the states that made up the former
Czechoslovakia practiced lustration as a method of transitional
justice. In 1991, the Czech and Slovak National Assembly passed a law
prohibiting former Communist Party officials, members of the People's
Militia, and members of the National Security Corps from holding a
wide range of elected and civil service positions in the new
government for five years (until January 30,
 1996);[34]
 the ban was later
extended an additional five years. 


 In Hungary, a 1991 law attempted to reset the stature of
limitations on crimes committed during the period of Communist rule
(1944-1990). Hungary's Constitutional Court overturned this
law. The Court later approved an amended bill, which labeled the
repression of 1956 as "war crimes" and "crimes
against humanity", both of which carry no finite statute of
limitations. On 9 March 1994, during the immediate run-up to national
elections, the Hungarian Parliament passed a lustration ordinance that
placed roughly 12,000 "officials" under review in an
attempt to discover who among them had collaborated with the secret
police during the Communist period. This list contained
Parliamentarians, high-ranking government officials, top officials at
the Hungarian National bank, ambassadors, generals, top media
operatives, police, university officials and professors, judges, state
attorneys, editors, directors of state agencies and banks, and
administrators of other sundry financial and governmental institutions
(Ellis 1996).




Two panels were charged with screening suspects by investigating their
secret files. The investigative period was to last six years and
results will remain secret for thirty years. Several elements of this
law were found unconstitutional in March 1994, and the Parliament
passed a new law on July 3, 1996, which provides for the screening of
all individuals born prior to 14 February 1972 before the assumption
of higher office. Former agents and officials of the internal security
services were the target. If the lustrated official did not resign
within thirty days, the results of the investigation would be released
publicly, bringing public humiliation into play as a tool of
lustration.




The demise of the former German Democratic Republic (GDR) in 1990, and
its annexation by West Germany, resulted in its
"colonization" by administrators, bureaucrats, and jurists
from West Germany. This was partly due to the manner in which
re-unification took place (*de facto* annexation), but was also
the result of the complete inadequacy of the existing East German
civil service in the face of the new demands of a capitalist
society. This "colonization" and the imposition of the
political and legal judgment of another country, a former foe, sets
the East German lustration apart from other such processes in
post-Socialist Europe.


 It was necessary to supply the new West German government with
moral and political legitimacy in the former states of East
Germany. This demanded the prosecution of past crimes under the prior
regime, but also a purge of Communists and Stasi collaborators from
the civil service. No post-Communist country has yet devised a
lustration scheme with the golden balance addressing these two
competing needs. East Germany was no exception, despite--or
perhaps because of--the rigor with which lustration was
pursued.




The ambiguities in the definition of collaboration (in cases of
collaboration, forced collaboration, pseudo-compliance, clandestine
resistance, etc.) resulted in similar difficulties in the lustration
purge, whose terms were defined in the EinigVrt (the Treaty of
Unification) (Blankenburg 1995). West German civil servants and
lawyers largely conducted the purge and the construction of new
institutions in East Germany. East German lawyers were both unfamiliar
with the new legal system and suspect in the eyes of the new
authorities. The non-indigenous nature of the process was a major
problem both in fact and public perception. The scope of the
lustration and the system's ability to delineate individual
responsibility for the Communist regime's repression were both
criticized (Blankenburg 1995).


 The Treaty of Unification dealt with the union of both legal and
political systems. Public employees would be scrutinized to determine
if they were politically and ideologically fit for
reemployment. Forced to reapply for their positions, public employees
faced rejection if Stasi or other untoward associations were
discovered. They also faced criminal trial if their offenses were
deemed prosecutable by the reconstituted court system. Most trials
were therefore conducted by new West German--or more rarely,
pre-screened East German--judges under East German criminal
law. These trials were meant to bring public humiliation to the
convicted.




The former leadership of the DDR was tried in courts in West Berlin.
Areas of investigation by the new authorities included: commanders
responsible for the DDR's border policy ("shoot to kill"),
election fraud at various levels of governance, and charges of
corruption, embezzlement, and "misuse of public funds"
(Blankenburg 1995). The prosecution took on a hybrid form: the
suspects had to be tried according to the criminal law of East Germany
(which West German jurists considered an *Unrechtsstaat*) but
with the procedures of West German courts. The intent was to
criminalize the Communist regime by treating and prosecuting its
leadership according to the rules of an ordinary West German criminal
trial.


 In the aftermath of the Iraq War of 2003, the Bush administration
pursued a policy of "de-Baathification" as a means of
purging the government of Saddam supporters and collaborators. In
contrast to previous lustration efforts following WWII and the
collapse of the Soviet Union, the U.S. government initially indicated
that a large number of bureaucrats and officials would be retained in
the post-Saddam government (de Young and Slevin 2003). However, the
scope of the United States' de-Baathification efforts would soon
expand well beyond that initially limited scope




The U.S.-led Coalition Provisional Authority (CPA) ultimately required
a governmental purge of all Baath party members, although there were
exemptions provided to certain local coalitions. Senior Baath party
officials were forbidden from entering the entire post-Saddam
administration, while ordinary members were prevented from entering
the top levels of government, thereby ensuring that the top levels of
government remained completely Baath-free (David 2006: 366). In
addition, Iraq's military and police services were completely
disbanded (see Yaphe 2004), leaving large numbers of trained military
personnel without work or purpose.




Several problems emerged from the U.S. policy of total
de-Baathification. By excluding so many citizens who had formerly held
power from government, the CPA ultimately excluded and marginalized a
large swath of the Iraqi population from both governance and the
economy; an estimated 60-75 percent of those purged were
unemployed by late 2003 (see *The Economist* 2003 and David
2006). To make matters worse, many of those excluded were former
military and police personnel who were seasoned combat veterans that
now sought to turn their military training against the U.S.-led forces
overseeing the reconstruction and democratization of Iraq.




As a result of the purge of Baath part members throughout the entire
Iraqi government, the CPA was faced with a shortage of qualified
personnel to staff the new administration, military, and police forces
(David 2006: 367). This lack of qualified personnel, combined with
intensifying attacks against both coalition and administration targets
and the subsequent difficulty recruiting workers, deeply impacted the
ability of the still-forming government to function. These flaws,
which ultimately obstructed efforts to stabilize Iraq and contributed
to the large number of causalities caused by insurgents, will be
discussed in greater detail below.


### 4.2 Criticisms of Lustration


Lustration policies are often bogged down by the paradoxical nature
of public trust during a political transition. A strong rationale for
engaging in administrative purges is to signal that a political
transition is real and that the authoritarian past is being put to
rest. Officials responsible for a transition want to signal that the
emerging democratic polity will operate differently from its corrupt
and dangerous predecessor. Such signaling is achieved, *inter
alia*, by displacing those who were responsible for administering
the corrupt and vicious policies of the past. And surely, public trust
does depend on communicating to ordinary citizens that a fresh
political start has been made--that a new and lawful polity has
been launched. On the other hand, public trust also depends on the
functionality and competence of government. The trains need to run,
licenses need to be issued or renewed, roads need to be maintained,
and public order has to be kept. And if the bureaucratic class that
knows how to do these things is subtracted from post war politics
because of how it behaved under the previous regime, the daily
operation of government is likely to suffer. And public trust is
likely to tumble accordingly (this is when we begin to hear that
"at least under Saddam the trains ran on time", etc.) The
first dilemma of lustration,then, concerns its scope: how does one
lustrate enough so that public trust (and retributive justice) are
served, without lustrating so much that the organs of government are
undone and public trust is lost as a
 result?[35]





It goes without saying that different countries face different
political circumstances when it comes to how much lustration they can
carry out: East Germany could afford to purge its civil service rather
severely, due to the availability of replacements from the West. Other
nations, such as Poland and Czechoslovakia, did not have this luxury
and had often to prioritize stability due to the exigencies and
inherent dangers of the initial transition period.


Another complication impacting the scope of lustration arises from
the difficulty in fixing degrees of guilt under totalitarian regimes.
Here the problem is not so much lustrating in a way that maintains
public trust but, rather, figuring out what counts, philosophically,
as the appropriate degree of guilt to justify lustration in the first
place. Mid-level officials in a ruling party mechanism cannot be
automatically labeled as enthusiastic or even willing supporters of
the machinery of oppression. Some were, some passively found their way
into their roles and still others were coerced into them. A morally
legitimate policy of lustration must take into account such gradations
of
 guilt.[36]

But the ability to determine degrees of culpability requires
expensive, lengthy investigations which are often beyond the means of
those orchestrating a transition.




Beyond these problems of scope lies an epistemological difficulty:
Lustration purges and exclusions frequently, though not always, rely
on testimonials and security service files which are often of dubious
accuracy. The files are often rife with human error, exaggerations,
and omissions. The most valuable Communist informants and
collaborators were often missing from surviving secret police files
(many were destroyed or "disappeared", probably into KGB
possession) or were shielded during the process (Minow
 2000).[37]
 On the other hand,
employees of the security services often embellished their accounts
and added false informants in the period before an audit so that they
could meet or exceed their prescribed
 quota.[38]



## 5. Forgetting




Having examined, in some detail, three of the most important ways in
which nations can come to terms with their past, it is perhaps fitting
to conclude this entry by considering the possibility that nations do
not attempt such a reckoning. Is there anything to be said for
forgetting in the aftermath of war? Is there an argument to recommend
amnesia as the basis of a political transition? (for a detailed
treatment see Rotondi and Eisikovits, forthcoming). 




Most often, forgetting cannot serve as the basis for peacemaking. It
is destructive on both the individual and collective levels. It
compounds the suffering of individuals by forcing them to watch their
tormentors walk around freely, reenter politics, or maintain their
posts in public service and the military. All of this takes place
while their own painful memories and traumas remain unacknowledged.
Furthermore, policies advocating forgetfulness decrease the chances
that victims will be compensated for their suffering. The most common
institutional products of such policies are laws granting amnesty.
Typically, under such amnesties, perpetrators are protected from both
criminal charges and civil liability. Amanda Pike, a reporter for PBS'
Frontline, tells a story which starkly demonstrates the cost of
forgetfulness for individual victims. During a trip through the
Cambodian province of Pailin, Pike came across Samrith Phum, whose
husband was executed by the Khmer Rouge. Phum knows the murderer well.
He is her neighbor and he operates a noodle shop across the street
from her house. He was never arrested and never charged with her
husband's murder. There is no procedure through which he can be sued
for damages. Phum must simply get used to the idea that her husband's
killer quietly manages his store next door (Pike 2002).




On the national level, a government advocating forgetfulness commits
the political correlate of suicide: it undermines the ability of the
group of people it governs to call itself a nation. The French thinker
Ernest Renan (1882) defined a nation as consisting of



>  two things, which, in truth, are really just
> one...One is in the past, the other in the present. One is the
> possession in common of a rich legacy of memories; the other is
> current consent, the desire to live together, the willingness to
> continue to maintain the value of the heritage that one has received
> as a common possession.
> 
> 



Forgetting destroys both elements. It undermines the possibility of a
common history by excluding an entire class of memories. At the same
time, it obliterates the desire of formerly hostile parties to live
together, or the possibility of social solidarity, by creating a
bubbling, poisonous, pool of resentment among an entire group of

 people.[39]



 Now Renan was far from naive. He admits that
"forgetting" and perhaps even "historical
error" are essential in the creation of national identity. Later
he adds that "the essence of a nation is that all individuals
have many things in common and also that they have forgotten many
things." Descriptively, he is surely right. Heroic
historiography and intentional forgetting was instrumental in creating
American, Israeli, Turkish, Spanish, and French contemporary
identities, to mention but a few. But identities based on amnesia are
rarely stable. Israel's new historians, the countless young Armenians
lobbying parliaments all over the world to recognize the Armenian
genocide almost a century after it took place, and the recent Spanish
"Historical Memory Law" (2007) all attest that it is
difficult to simply bury the past. If the groups that have been
forgotten are not annihilated, their painful memories continue to
fester until they eventually erupt in renewed conflict.




But what if all parties involved in a conflict really want to forget?
What if there is a tacit or explicit agreement not to dwell on the
past? What are we to make of Mozambique, for example, where in the
aftermath of a long, bloody civil war, the combatants actively elected
*not* to address past atrocities? In her superb book on truth
commissions, Hayner (2002) describes an election rally in post-war
Mozambique in which a candidate was literally chased out of a hall for
bringing up the conflict. Can we really make a normative argument for
remembering if both sides freely chose to forget? One possible way to
make such an argument is by analogy. It is quite clear to us that, in
the domestic context, the fact that two sides to a conflict agree to
bury the hatchet does not preclude their prosecution by the criminal
justice authorities. Thus, if two neighboring families become
entangled in a massive brawl, during which property on both sides is
destroyed, and some injuries are sustained, the District Attorney's
office may decide to issue indictments, even if all of those who did
the fighting would like to put the whole incident behind them. The
criminal law is not a private matter completely at the discretion of
citizens. The public has a stake in upholding the criminal law, and is
understood to be an interested party whenever it is broken. After all,
in the example provided above, wider interests were compromised:
traffic may have been disturbed by the fighting, the small children of
other neighbors may have been watching, publicly funded hospitals may
have been called on to treat the injured, reports of the fight may
have made their way into the news media bringing down house prices,
etc. In short, the fight, almost any fight, has repercussions for
third parties. That is why, in important ways, such fights are
everyone's business. And that is why criminal cases are typically
titled Commonwealth vs. Jones rather than Smith vs. Jones.




Is there an analogous argument to be made about the aftermath of
political conflict? Are there any third party interests that may
justify some kind of reckoning with mass atrocity, even if all of
those involved would freely choose to put the past behind them? Fully
answering this question is beyond the scope of this entry, so we shall
simply gesture at some of the difficulties that need to be addressed
in order to do justice to it.




First, who are the third parties whose interests are implicated by a
decision on the part of two warring parties to bury the past? Could we
argue that, given the intense media coverage given to political
conflicts, a failure to address massive violations of human rights in
location *X* (for whatever reason) may endanger human rights in
location *Y* (by, say, bolstering the confidence of would be
perpetrators)? If so the third party could be described, vaguely, as
the international community, a community with a serious interest in
creating a robust culture of human rights wherein violations are
documented and addressed rather than simply ignored.




Second, even if we agree that there are interested third parties in
the international context, how could such parties ensure that their
interests are protected? What sort of enforcement power do they have?
Here the answers are both legal and political. The nascent
International Criminal Court may be used in cases where its authority
comes into play. Perhaps more significantly, the international
community (or, more specifically, the most powerful international
players) may resort to political pressure. After all, countries such
as Mozambique, emerging from prolonged wars, are desperately dependent
on international aid. Donor countries could, accordingly, make aid
contingent on the addressing of past atrocities.


 When all is said and done, it appears that the main difference
between the domestic and international cases has to do with the
consequences of the decision whether to use the courts. While in the
domestic arena a failure to prosecute can result in increased cynicism
about the law (and eventually in a weakening of the rule of law),
imposing accountability in the aftermath of war may, under some
circumstances, reignite violence. Insisting on doing justice in such
cases recalls Lord Mansfield's famous dictum in the 1772 Somerset
case: that justice must be done "though the heavens may
fall." The trouble, of course, with this Kantian pronouncement
is that there is no one to reap the fruits of justice after the
heavens have fallen.