4.   Institutional and Legal Responses

Trials and Truth Commissions

This chapter explores the use of institutional mechanisms to foster societal reconciliation. Although the vast majority of conflicts in the twentieth century were never followed with prosecutions of those responsible for the most significant violations, and while few authoritarian leaders have faced trial for their abuses, the century also witnessed the emergence of the principle that serious human rights violations should be punished through a legal process, rather than with simple revenge. The development of international human rights law and the establishment of occasional tribunals reflect a change in how nations understand past violations and their legacies. Indeed, considering the devastation of the past one hundred years, it is perhaps not surprising that a global human rights discourse has developed and matured, espousing fundamental ideals of human dignity and respect.

Nevertheless, this development was never guaranteed. The Nuremberg and Tokyo trials following World War II and the UN Genocide Convention (1948) established the principle that perpetrators of crimes against humanity should be tried and punished for their actions, but the Cold War put human rights concerns in a deep freeze for nearly forty years. In the Soviet-American bipolar world, human rights rhetoric was manipulated for political purposes and was rarely if ever the motivating force behind foreign policy (Ball 1999).

Human rights law is today the weakest component of international jurisprudence, certainly much weaker than international business or trade law. Still, there is no doubt that with the end of the Cold War, human rights discourse has gained strength. The past two decades have seen two international war crimes tribunals established, for Rwanda (ICTR) and the former Yugoslavia (ICTY), and additional tribunals have been created in Sierra Leone, East Timor, and Cambodia. The first permanent global criminal court, the International Criminal Court (ICC), came into being in the early years of the twenty-first century. Furthermore, domestic courts around the world have taken up the challenge of prosecuting human rights violators as a way of meaningfully engaging the past and reestablishing the rule of law. “Retributive” justice has become a guiding norm for human rights supporters around the world.

Tribunals have not been the only institutional response offered by human rights advocates. Over the past three decades, there have been increasing calls for the establishment of truth commissions to compile official histories of oppression and recognize victims. Nations around the world have adopted truth commissions, in many guises, as a way to come to terms with painful pasts. Generally eschewing formal trials (often because of political constraints), commissions have focused on restoring the dignity of victims and survivors and producing a definitive historical account by espousing what advocates call “restorative” justice in their quest for societal reconciliation.

This chapter considers how nations have attempted to come to terms with their violent history through the use of tribunals and truth commissions, by assessing their contributions and limitations for reconciliation. This chapter is divided into two parts. Part I discusses the normative underpinnings of tribunals and truth commissions, retributive and restorative justice, respectively. While I find this distinction ultimately unsatisfactory, I begin here (which is how the debate continues to be framed) before moving on to an alternative formulation. I consider the justifications, promises, and limits of both retributive and restorative justice, and assess their contributions to reconciliation. Part II identifies factors that affect the viability of tribunals and truth commissions, and emphasizes the importance of contextual constraints on their implementation and use. I conclude with qualified support for both institutions, arguing that (1) they are not mutually exclusive (either theoretically or practically) but rather often complementary and (2) they are important but by no means sufficient instruments for social reconciliation. I contextualize the importance of this social level by showing the impact that institutional mechanisms can have on societal reconciliation. The importance of this level for the norms of respect, accountability, rule of law, and truth telling is emphasized, but what also emerges is the insufficiency of this level for broad-based reconciliation.

Part I: Normative Foundations

To assess tribunals and truth commissions requires some criteria for evaluation. In Chapter 2, I discussed and defended a plurality of normative concepts that give greater theoretical substance to the idea of reconciliation as respect. In this chapter, I employ these concepts as a measuring device to analyze tribunals and commissions, and to indicate where the former may require additional support to further the goal of reconciliation.

Because the retributive-restorative justice debate is in reality centered on the practical impact of trials and truth commissions, I focus on these institutions in my discussion. This is valid, I believe, for at least two related reasons. First, in practice the debate often shifts between abstract notions of “justice” and their empirical manifestations, indicating that the real discussion to be had must also include a discussion about the institutional mechanisms themselves. Second, the abstract debates in reality are not free-floating but are grounded in the actual exigencies of transitional settings where trials and commissions have played a major role (indeed, the restorative justice model is seen by some as having developed post-hoc to legitimize truth commissions, though this characterization is unfair and historically inaccurate). With this in mind I focus on restorative justice through the mechanism of commissions and retribution through the mechanism of trials.

Retributive Justice and Tribunals

While the modern effort to prosecute human rights violations has its roots in the Nuremberg tribunal following World War II, it is with the democratic transitions starting in the 1970s in southern Europe, continuing through the Latin American transitions of the 1970s and 1980s, and moving into the 1990s in Eastern Europe that trials for serious human rights offenders came to dominate discussions of how to deal with violent legacies of authoritarian rule or civil war. In practically all of these cases trials were seen from a domestic perspective as national responses to national challenges, and international tribunals like Nuremberg were considered unlikely or otherwise inappropriate. Because many of these transitions were pacted and shaped by amnesties, the trials were often limited in reach and scope, and it was not uncommon for prosecutions to start and stop fitfully. These attitudes changed with the end of the Cold War and the massive bloodletting in Rwanda and the former Yugoslavia, which prompted the international community to establish two international tribunals. Arguably, these new courts were partly a chastened response by foreign powers to the fact that they had done little to stop the wars, but although limited in territorial and temporal jurisdiction, these trials have sought to resuscitate the primacy of international law for the most horrible violations. Both tribunals have made significant contributions to international law, giving greater substance and nuance to the definitions of crimes (e.g., genocide, war crimes, and crimes against humanity, and grave breaches of the 1949 Geneva Conventions), the legal understanding of victim group categories, and the concept of intentionality at the heart of genocide. Since their establishment, international human rights law has moved in several slightly parting or at least parallel directions.

First, we have witnessed the creation of so-called “hybrid” tribunals with international backing that combine, to differing degrees, domestic and international jurisprudence and include both international and national judges. There have been a number of these courts, including the Serious Crimes Panels of the District Court of Dili in East Timor, the Special Court for Sierra Leone, “Regulation 64” Panels in the Courts of Kosovo, the War Crimes Chamber of the State Court of Bosnia and Herzegovina, and most recently the Extraordinary Chambers in the Courts of Cambodia. The Iraq Special Tribunal, later changed to the Supreme Iraqi Criminal Tribunal, is occasionally referred to as a hybrid, though its international component is largely American.¹ These hybrid courts have been established where there is little domestic capacity to deal with mass crimes and international technical and legal assistance is necessary for legitimate prosecutions. Unsurprisingly, there is much variation across the courts: While the Kosovo and Bosnian tribunals are firmly entrenched in domestic law, the Cambodia and Sierra Leone courts are based on substantial international cooperation with national governments. The Iraqi tribunal for its part has been largely isolated from international input.

Second, we have seen traditional domestic courts drawing on international law and jurisdiction, however unevenly, with renewed vigor in an effort to bring international norms into a national setting. In Belgium, Argentina, and Spain, to cite a few examples, national courts or investigative judges have sought to employ principles of universal jurisdiction (or expanded versions of national jurisdiction, such as the so-called passive and active personality principles) to try serious human rights crimes. Lastly, a permanent ICC has been created with near universal jurisdiction to try war crimes, crimes against humanity, genocide, and eventually crimes of aggression. Some of the most interesting developments in human rights law have occurred in these international and hybrid fora, and while national courtrooms relying on domestic law will undoubtedly continue to be useful venues for prosecution, the internationalization of human rights law has become particularly important for understanding the possibilities of accountability (Sriram 2005).

These various tribunals and approaches have significant differences but they are all rooted in the principle of retributive justice, which privileges the importance of trying and punishing perpetrators. The line between retributive justice and vengeance, however, can often seem to be a thin one. While vengeance may seem to imply something like proportionality in punishment, it risks degenerating into wanton violence and cruelty. Retributive justice distinguishes itself from vengeance through procedural and substantive requirements that constrain the actions of the prosecutor—or avenger—and provide some protections to the accused. The rule of law, in other words, is the key difference between retribution and vengeance. Retribution in this chapter is used in this sense, that is, as a type of institutionalized, punitive response based on the rule of law. This formulation serves as an important heuristic device and moral ideal to orient our discussion of post-atrocity justice.²

Following Minow (1998), there are several criteria that retribution must satisfy if it is to remain within the bounds of the rule of law and not degenerate into vengeance: (1) a commitment to redress past abuses using generalized, codified, preexisting standards; (2) the use of a formal institution characterized by impartiality and transparency with due process protections; (3) the state's commitment to prosecute individuals only in terms of specific crimes for which there is valid evidence; and we could add (4) the power to impose a binding sentence on the defendant that amounts to more than public censure lacking coercive force.

Advocates of retributive justice offer several justifications for trials:

1. Following severe violence, basic notions of justice demand that violators be punished for their actions. This notion of retribution is non-consequentialist; it places no emphasis on the social consequences of its actualization and appeals instead to notions of “just deserts” (Kant 1998; Nozick 1981).

2. Victims are acknowledged and regain dignity and moral worth when their violators are punished publicly for their crimes. Trials reaffirm the moral status of victims by showing the world that their demands for justice are legitimate (Neier 1998).

3. Identifying and punishing leaders of crimes against humanity places individual guilt on key actors and institutions. By identifying individual leaders as perpetrators, claims of collective guilt that associate crimes with an entire ethnic or national group are minimized (Prunier 1997).

4. Trials may mitigate demands for vengeance and redirect them into institutionalized and fair proceedings for accountability, minimizing the likelihood of vigilantism (Shklar 1964).

5. Trials create a public record of crimes by collecting and questioning evidence (Bass 2000).

6. Tribunals further the domestic rule of law, the basis for a democratically stable and peaceful society (Robertson 2000).

7. Trials satisfy a duty deriving from international law (both treaty-based and customary) to prosecute serious violations of human rights (Damaska 2008; Orentlicher 1990).

8. Trials deter future abusers, signaling to leaders what may happen to them if they terrorize their populations (Roth 1999).

The main purpose of a trial is to assess culpability and punish the wrongdoer if guilt is proven. Although they work to some extent to recognize victims, they are driven by the importance of establishing accountability. They do this by using higher standards of evidence and due process protections for defendants than truth commissions, which are not, after all, judicial organs. Nor should trials be seen merely as revenge. Defendants may be acquitted, as they occasionally are, but what makes a prosecution legitimate is that due process considerations are followed. In this respect, while prosecutions may focus on retribution they do so, ideally, within the framework of the rule of law, and thus contribute to the establishment of a Rechtsstaat, or a political order based on law. Trials should be protected from political interference and focus instead on examining mass atrocity through a consideration of relevant norms and rules.³ Furthermore, by identifying specific persons and agencies as violators, advocates say, tribunals lessen the stigma of collective guilt (e.g., of all Serbs or Germans). Focusing on individuals highlights that mere membership in a particular identity group does not mean culpability.

There are, however, several significant challenges to using trials. The first concern is the scope of prosecutions. At best, a judicial system can prosecute only a certain number of violators, which is a significant problem in the face of massive human rights violations like genocide, crimes against humanity, and similar crimes that depend on the participation and coordination of a large number of perpetrators. The normative claim that accountability promotes the rule of law by holding criminals responsible for their actions is thus only partly realizable; these crimes are often too extensive with too many participants to make complete criminal justice feasible. Confronted by this limitation, trials are sometimes used to prosecute high-level intellectual authors of crimes, their immediate subordinates, and those responsible for the most shocking atrocities. The UN ad-hoc tribunals for Rwanda and the former Yugoslavia have largely followed this strategy, though their mandates do not limit them to this. Whom to prosecute is not only a normative concern generally but also a practical challenge for international tribunals: The ICTR has faced considerable criticism from Rwanda for claiming the right to prosecute the main architects of the genocide and trump domestic trials in Rwanda's judicial system. The ICTY, too, spearheaded the prosecution of high-level leaders, including Yugoslavian President Slobodan Milošević (who died in custody) and Bosnian Serb leader Radovan Karadži, though it has also prosecuted low-level perpetrators like Duško Tadi who committed particularly atrocious crimes. But even if a balance between international and domestic prosecutions is achieved, how far should prosecutions go in principle? As Raymond Aron has noted, the lines are rarely clear, and it is difficult, at best, to distinguish between prosecutable and non-prosecutable individuals. “How far is the search for the guilty to be carried? To what degree are the duties of obedience or national solidarity to be considered as absolving excuses?” (1967, 115). The counter-problem also exists: Rather than having only high-level leaders prosecuted, only a handful of subordinates responsible for an especially horrific crime are tried, as if the extent of violence began and ended with a few vicious, rogue units. In this scenario, trials are rightly viewed as a mechanism benefiting major perpetrators by scapegoating low-level functionaries.

Some of these concerns over scope and individualization have been mitigated through the employment of so-called collective liability principles like command responsibility, which permits the prosecution of military commanders (and in certain circumstances political leaders) for crimes committed by their subordinates, thus expanding the range of legal culpability beyond those who are the immediate perpetrators up to and including their superiors. The focus on hierarchical culpability has been complemented by recent ICTR and ICTY decisions that employ the novel legal doctrine of joint criminal enterprise (JCE). Under JCE, individuals can be found guilty for crimes they did not directly physically commit if prosecutors can show that defendants had a common design or plan to commit a crime, intended the objective of the plan, and participated in the crime in some way (Ambos 2007; Danner and Martinez 2005).⁴ The merit of JCE doctrine is that it takes seriously some of the complexity surrounding contemporary mass crimes by moving beyond highly individualized and selective understandings of culpability to encompass the systematic and collective nature of violations typical of modern warfare and genocide. There are, to be sure, concerns with expanding legal culpability in such a way, and assessing responsibility requires a careful forensic reconstruction of events and relations between perpetrators (whether hierarchical or “horizontal”), inference of criminal intent, and other contextually sensitive criteria for assessing vicarious responsibility, all of which are particularly challenging where express written orders or other corroborating evidence are unavailable. Nevertheless, the new openness to more complex understandings of legal responsibility means that modern jurisprudence has attempted to tackle some of the concerns inherent with the extreme individualization of guilt. Some of these theories of collective liability, like command responsibility, have been employed widely in criminal prosecutions and will likely continue to evolve to take into account complex human rights violations. However, even with these advances trials will always have a relatively limited scope of applicability, as they can be expected to prosecute only a relatively small proportion of violators in situations of mass crimes. Their limited scope should give us pause in expecting them to carry the normative weight of accountability for reconciliation.

A constrained evidentiary scope places limits on the kinds of narratives that can be employed in trials. Marie-Benedicte Dembour and Emily Haslam (2004) have noted, quite convincingly, that a trial's focus on specific facts of a perpetrator's responsibility may distort historical accounts that would situate particular instances or cases of violence within a larger context.⁵ Thus, rather than give us more informed understandings of patterns of violence, trials may artificially separate events from one another. The structure of a trial—of a procedurally just trial, at least—creates this imposition, which is defensible on its own terms but says little about how to connect discrete events to general historical assessments. Moreover, this evidentiary constraint means that only certain types of truth claims are considered admissible—that is, those pieces of evidence that are directly quantifiable or pass a standard of forensic “objectivity” are accepted. Dembour and Haslam note that these types of evidentiary requirements also distort witness testimony, as victim witnesses only occasionally provide information that can easily be subjected to a “true/false dichotomy” (2004, 156). Some major trials such as Adolf Eichmann's have allowed victims to recount their suffering and thus paint a historical picture of the conflict through the lens of personal anguish, but these cases have been heavily criticized for weakened evidentiary and procedural standards (Douglas2001). The ICC's founding statute (United Nations 1999, art. 43, sec. 6) allows for more extensive victim participation in its trials (as well as reparations), but it is still too early to say how this will look in practice, and in any case the ICC's position represents the exception to the trend. In contemporary tribunals committed to basic due process, witnesses are rarely invited to provide extensive unstructured accounts of their experiences. Their testimonies are sought for the specific purpose of prosecution (or defense), and counsel unsurprisingly use them strategically. As sites for the construction of historical memory, then, trials risk distorting public understandings of the past, for the evidence provided in a courtroom is selected to prosecute particular individuals and not serve as the primary interpretive framework of the conflict.

Regardless of the efforts to ensure that prosecutions are fair, the problem of political manipulation is a constant threat. Trials are exemplary rituals insofar as they communicate that certain acts are so terrible that they rise to a level requiring clear and strong moral (and legal) condemnation. Selective prosecutions focusing on these types of violations indicate that these actions will not be tolerated in the future and that the state is committed to new norms of human rights. This is fundamentally a didactic element of prosecutions; they teach the nation the wrongness of certain actions and behavior in a theatrical way (Osiel 1997). But they also signal the limit of judicial mechanisms for achieving justice. And trials as exemplary performances of punishment can be dangerous; the line between legitimate select prosecutions and show trials is a thin one. In transitional settings, courts are not independent institutions immune from political pressures and strategies. Prosecutions are political symbolic acts meant to separate the new regime from the previous one. However, the strategic use of trials to further some other end—be it to establish the conditions of legitimacy for the incoming government, renew social solidarity through the persecution of identifiable enemies, or “teach” a civics lesson about atrocity—carries the serious risk that the rule of law will be usurped. Consider the Moscow show trials or more recently the Iraqi Shia government's interference in Saddam Hussein's trial and execution.

I doubt the political component of transitional trials can be eliminated—indeed, even the UN tribunals’ efforts to use ostensibly neutral language in court proceedings and statements conflict with their commitment to promote the liberal discourse of human rights. Aiming to completely depoliticize courts would probably only result in masking, to some extent, their explicit normative commitments or the interests of the actors who established them. The challenge is to balance the protection of the rule of law and its basic principles of due process and impartiality with the distinctly epideictic and ritualistic aspects of trials as institutions that condemn the actions of perpetrators and affirm basic rights. This problem of politicization is a constitutive problem—that is, it cannot be eliminated at a theoretical level but can only be reduced and mitigated in the practical application of prosecutions.

An additional problem concerns retroactivity. On occasion, certain violations may technically have been legal when they were committed. Prosecuting these acts violates the basic legal principle of nulla poena sin lege, so there can be no punishment where there is no law prohibiting an action. Certainly, when confronted with massive violations the ex post facto challenge seems grotesque because it runs counter to basic moral intuitions of justice and responsibility. Nevertheless, it is an important consideration, for the rule of law requires fidelity to basic principles of justice if it is to create a Rechtsstaat. This was one of the challenges raised against the Nuremberg trials, which sought to punish Nazi leaders for some crimes that were not—legally speaking—recognized as such. Indeed, the famous debate between H.L.A. Hart criticizing prosecutions of Nazis and Lon Fuller defending the trials on moral law grounds set the terms of discussion between positivism and natural law in relation to war crimes prosecutions for several decades (Fuller 1958; Hart 1958; Kelsen 1947). But while retroactivity does pose a problem for prosecutions, its importance is, I think, often overstated. Over sixty years after the precedent-setting trials at Nuremberg and decades of treaty and customary human rights law, as well as a significant corpus of case law emerging from the ICTR and ICTY, it would be difficult to argue that genocide, war crimes, crimes against humanity, and the most fundamental violations of human rights can still be legally defended. Indeed, Nuremberg is often cited as establishing that perpetrators can be prosecuted for knowingly committing crimes recognized by the international community, even where no specific laws exist to bar such activities. The development of a robust body of human rights and humanitarian law since the end of World War II, and the existence of a UN convention (1968) specifically rejecting statutes of limitations for grave crimes, all point to the mitigated salience of the problem of retroactivity.

Although these challenges are notable and the first three, at least, are in a certain sense ineradicable, they do not undermine prosecutions so much as indicate their conceptual limitations. Pointing out the limits of prosecutions means that tribunals are important but not sufficient instruments on their own for accountability; they need to be complemented with other forms of accountability at other social levels, such as debates in civil and political society about responsibility and culpability. Nevertheless, trials play an important role in reconciliation, for without prosecutions to punish extensive violence, impunity remains strong and the rule of law remains weak. Combined with adequate due process protections they can serve as legitimate devices for promoting justice in transitional societies, and to this extent we can say that trials form the locus of accountability for reconciliation (I address the problem of amnesty further below).

What then of the relationship between trials and victims? Antonio Cassesse, the ICTY's first president, offered a rather wishful reading of the contributions of retributive justice to victims: “When the Court metes out to the perpetrator his just deserts, then the victims’ calls for retribution are met; by dint of dispensation of justice, victims are prepared to be reconciled with their erstwhile tormentors, because they know that the latter have now paid for their crimes” (1998, 3).

Underlying Cassesse's claim about the power of trials is the assumption that victims’ moral need for recognition will largely be met through the dispensation of retributive justice, thus encouraging them to forswear vengeance and move toward reconciliation. Trials, in other words, are meant to right past wrongs and return a sense of moral worth to victims. They are an important arena for punishment, but it is far from obvious that prosecutions directly contribute to tempering calls for vengeance or providing victim recognition. A courtroom can function as a public space for victims to tell their stories and their testimony combined with other forms of evidence can forcefully challenge charges that victims fabricated or exaggerated their experiences. Nonetheless, we should be wary of claims that the trials can somehow be “healing.” Eric Stover's important ethnographic research at the ICTY shows that victims often risk being retraumatized when confronting their tormentors, particularly during cross-examinations, which can be emotionally overwhelming and ultimately damaging to their self-esteem and psychological health (2005). Part of the confusion here is that a significant body of psychological research shows that victims can receive some therapeutic benefits from recounting their experiences in supportive settings, and prosecution advocates have taken this to mean that courtrooms can further witness healing by allowing victims to accuse their violators directly as part of a personal catharsis. But it is not at all evident that trial testimony has this effect. While it may be the case that testifying may have a short-term cathartic effect for some witnesses, psychological and medical anthropological studies show that healing requires more than the emotional abreaction following public testimony in a courtroom (Summerfield 1995). For some victims, testifying may have few detrimental consequences, but for many it can force them to relive painful experiences in a hostile environment where opposing counsel can trivialize or dismiss their testimony while questioning the authenticity of their experiences. Retraumatization is not uncommon and in a confrontational institutional setting like a courtroom victims can feel abused, humiliated, and used. Rather than provide moral recognition, a trial can further devalue victim witnesses unwittingly, especially if there are no additional support structures for witnesses following their testimony, which typically are lacking. This is perhaps the weakest aspect of trials, and underscores the importance of complementing their work with other state initiatives that deal specifically with victims.

However, the very existence of public prosecutions can generate public debate about social obligations toward victims—trials, in other words, both legitimate victims’ claims and redirect public attention toward them. In this sense, trials may foster sustained deliberation about the past and a reconsideration of previously held truths about the period of violence, as well as the place of victims in society, well beyond the particularities of a specific court case. Victor Turner calls these types of trials “social dramas,” or cultural events that undermine and render problematic general beliefs while demanding reflection on previously given categories for making sense of the past:

Since social dramas suspend everyday role playing, they interrupt the flow of social life and force a group to take cognizance of its own behavior in relation to its own values, even to question the value of those values. In other words, these dramas induce and contain reflexive processes and generate cultural frames in which reflexivity can find a legitimate place. (2001, 92)

Though Turner's notion of cultural framing is at times rather mechanistic (in no small part due to his reliance on Emile Durkheim), he is right to underscore how prosecutions can create conditions for citizens to think about alternative conceptions of victimhood. Thus, though trials may not address victims directly, they establish and create an intelligible framework that allows for debate to take place about responsibility, complicity, the status of victims, and what is owed to them.

Trial records also create a public account of past wrongs. The Eichmann trial produced a wealth of information on the organization of the Final Solution, and the Auschwitz trials identified the gruesome process of extermination that was paradigmatic of the Holocaust (Douglas 2001; Whitmann 2006). The Raboteau case in Haiti unearthed significant information on the internal organization and operation of the United States-backed Front for the Advancement and Progress of Haiti (FRAPH) death squad, and perhaps most impressively the UN tribunals for the former Yugoslavia and Rwanda have amassed an enormous amount of material on the civil wars in those countries (Concannon 2001). The prosecution of the intellectual authors of crimes should include the investigation of the agencies, bureaucracies, or groups they lead; this in turn can provide some insight into the organization and operation of violence. In this way, tribunals contribute to the larger project of creating a factual account of the past. Nuremberg, for example, amassed a staggering amount of information on the Schutzstaffel (SS) and gave historians a rich archival fund with which to reconstruct the Holocaust. Even Arendt, who opposed justifying trials on any grounds other than their retributive capacity, noted approvingly, “Even today, eighteen years after the war, our knowledge of the immense archival material of the Nazi regime rests to a large extent on the selection made for prosecution” (1967, 231). Furthermore, the fact that fair trials have a high standard for admission of evidence has led some commentators to argue that its “truth” carries greater weight than that found in truth commission reports. This depends on the tribunal and commission in question, of course, but the fact that fair trials include high evidentiary standards means that trial evidence may be considered credible.

Nevertheless, as discussed in Chapter 1, the construction of “truth” after mass atrocity is a fraught enterprise, and this is especially the case in successor trials. While truth production in a trial includes a didactic element—trials, after all, signal to the population the wrongness of certain actions—it ought to be limited by the strictures of the rule of law: Individual defendants, for example, should be held responsible only for their actions, and not those of others who fall outside their control or knowledge; and only evidence directly related to a case should be presented. This can be hard to accomplish, however, because successor trials always provide a particular interpretation of the past. Ben Gurion, for example, wanted the prosecution of Eichmann to be told against the backdrop of crimes “against the Jewish people,” as part of a rethinking of Jewish history (Lahav 1992, 559–561). And the charter of the Tokyo trial stated that “the tribunal shall not be bound by technical rules of evidence […] and shall admit any evidence that has probative value,” essentially permitting the introduction of material that may not be specifically germane to the case at hand (Minear 2001, 118). The difficulty lies in drawing a connection between the particular acts of specific individuals and general historical developments, without stating the criteria used for inferring such connections. The problem is an important one that highlights a difficult obstacle faced by trials. It further points us to the importance of looking at other complements in other mechanisms and at different social levels.

Truthful accounts in reconciliatory processes should be rooted in facts, but all facts must be interpreted. Clearly, we should oppose trials that merely paint perpetrators as evil without stating actual charges or without backing them with relevant evidence. But framed by the requirements of the rule of law, courts can identify hidden cases of abuse and identify those responsible for them. These public records are not only factual but also political, as they shape public deliberation about responsibility and collective norms. This is desirable because trials reaffirm basic values that were violated in the past. We should demand the most convincing and reasonable interpretations of events and responsibility in any particular case, and encourage civil society to turn to the evidence in constructing and debating new understandings about the past. The hermeneutic aspect of truth formation—where particular events delineated in a case help inform broader social understandings of the past—means that trial records contribute to this project because of the legitimacy they carry, but are not the prime locus for it.

Trials may also promote the rule of law by eliminating existing authoritarian enclaves that are holdovers from the previous regime. Through prosecutions of human rights violators who may still have some political protections, trials signal that the new regime is committed to holding all perpetrators accountable. Combating impunity is closely related to the Janus-faced aspect of tribunals; while they face the past through judgment, they also turn to the future by showing the necessity of a new legal regime founded on a respect for rights. This can have an important, transformative effect as trials signal that government power must be held within certain limits and individual rights must be protected from capricious state behavior.

In Chapter 2 I discussed how the rule of law is understood as a normative concept that entails a commitment to the principle of nonviolence and the processing of political conflict through legitimate procedures of deliberation framed by a basic rights model. Successor trials inform this by helping creating a space for public deliberation about rights, responsibility, and what it means to live under the rule of law. Nevertheless, transitional regimes are often constrained by amnesties. As such, the retributive impulse of prosecutions is blunted and the rule of law is undermined. Given how common amnesties have become, in the following section I discuss the uses and limitations of amnesties in transitional scenarios.

The Problem of Amnesties

If justice requires accountability, then amnesties—which give legal immunity to persons who should be tried for violations—are nearly always unjust. By limiting prosecutions preemptively, the demand for accountability is undermined and impunity is strengthened. However, amnesties of some sort are a part of many transitions, and their relationship to reconciliation deserves attention.

The difficulty lies in balancing the pragmatic need to secure a stable transition with the normative demand for legal and moral accountability. At their most basic, amnesties are understood as practical compromises with at best no moral weight whatsoever, though in some instances amnesties have been subsumed into the broader search for reconciliation. The South African case is illustrative. As Richard Wilson (2001, 99) and others have noted, “According to the Interim Constitution of 1993, the only function which the TRC had to fulfill in pursuit of reconciliation was to grant amnesty in a spirit of ubuntu [humaneness] and understanding, for politically motivated acts within a specific period of time.” In such an approach, amnesty is transformed into a tool of social regeneration, blunting the call for destructive vengeance. Accountability, the rule of law, and victim recognition are cast aside in favor of securing some degree of peace. John Dugard (1997, 284) reads the South African case as demanding a coercive form of reconciliation over justice, resulting in a reconciliation that “minimizes the memory of apartheid,” and “it is not clear that [reconciliation] takes adequate account of the interests of the victims of apartheid.” Dugard is correct, provided we accept such a definition of reconciliation. In any case, though amnesties may guarantee political stability in the near and possibly mid-term, it is not clear that they contribute to reconciliation in the long term. And this is not merely a semantic quibble. Amnesties undermine the rule of law and signal that the interests of victims can be sacrificed for the common good of stability. The issue here may be one of timing: For instance, it may be necessary to defer prosecutions because a new government is too weak to confront powerful violators, as happened in Argentina and Chile. A stronger claim, made by Jack Snyder and Leslie Vinjamuri, is that once amnesties are made, “institutions based on the rule of law become more feasible” (2003–2004, 6). The evidence for this is mixed, however, and while it may be the case that in particular circumstances amnesties are necessary for securing a democratic transition, there is no compelling normative reason why they should continue to be honored when the democratic regime has become more secure. As Argentina, Chile, Peru, and a number of other countries have shown, pursuing prosecutions after democratic rule has been consolidated can be both feasible and morally defensible. At most, amnesties should be seen as deferring justice, not eliminating it.

Given that amnesties may be necessary, is there a way to make them more palatable, or to have them serve the interests of justice? One of the dangers with amnesties is that their distinctly pragmatic nature is often subsumed under a rhetoric of forgiveness, where they are seen as an institutionalized form of forgiveness. By passing an amnesty, leaders may be perceived as saying, “Let us bury the past and begin a new future.”

Amnesties, however, are pragmatic devices, not moral responses to injustice, and there is a great deal of differentiation among them. They differ primarily on whom or what they place outside the domain of prosecution. Some are explicitly act specific, that is, they protect some crimes, such as murder or terrorist financing, but not torture or kidnapping. Algeria's 2006 amnesty, for example, exempted only those insurgents who had supported or financed terrorism but had not been involved directly in terrorist attacks (it did, however, provide a blanket amnesty for the security forces) (Human Rights Watch 2006). The United Nations recognized only certain acts as amnestied in Sierra Leone's 1999 amnesty, exempting crimes against humanity, war crimes, genocide, and other serious violations of international law (Annan 1999). Other amnesties specify a temporal range for protection, indicating that crimes committed during the designated time period are protected from prosecution. This is perhaps the most common way of framing an amnesty and was typical in Argentina, Brazil, Chile, and Mozambique. Nevertheless, even these blanket temporal amnesties may overlook certain crimes: In a novel reading of Argentina's amnesty not intended by its authors, judges ruled that the military's kidnapping of the children of the disappeared constituted ongoing crimes and thus were not covered by the 1986 and 1987 amnesty laws (Verdeja 2009). Other amnesties give immunity to certain classes of actors and protect all members of a certain group or institution, such as the armed forces or internal security forces. Peru's (1995) amnesty protected all members of the security forces and civilians (but not insurgents) who were the subject of a complaint, an investigation, a trial, or an imprisonment for human rights violations from the beginning of the war in 1980 to the enactment of the law (Amnesty International 1996). Even here, however, there maybe some differentiation such as extending amnesty to insurgent combatants but excluding the top leadership, as happened in the 2000 amnesty in Uganda offered to the Lord's Resistance Army (amnesties were later extended in 2003, 2006, and early 2008) (Ariko 2008). A variant of the actor approach is to provide conditional immunity to particular individuals rather than entire groups or institutions, as in South Africa. But South Africa's individualized focus has been the exception: Most amnesties have combined elements from these various approaches, offering immunity to entire groups for a range of crimes committed during a specified time period.

Only conditional, individualized amnesty, I think, can be defended morally to any extent. The South African amnesty provides an important illustration: Amnesty was not part of the collective erasure of memory, as in Uruguay, but was given only to those individuals who confessed their actions completely and truthfully.⁶ By testifying for immunity, they publicly incriminated themselves and laid bare the evils of apartheid. Those who chose not to confess risked prosecution, though in reality this was rare. Nevertheless, this conditional component of amnesty helped undermine justifications for apartheid and showed its awful practices and legacy to the South African people. Those who testified had their reputations destroyed and experienced a measure of public accountability and punishment. As Bert van Roermund has written, amnesty served as “a way of covering that uncovers the meaning of what has happened” (2001, 178). In South Africa, amnesty was tied to truth seeking and justice.

Amnesties may be morally defensible if they assist other moral goods, such as truth telling. If granted on an individual basis through public testimony, a conditional amnesty can help the investigative work of a truth commission while also shaming perpetrators who otherwise will receive no punishment. Nevertheless, amnesties, even conditional ones, should be used sparingly, for they also symbolize the state's willingness to trade on the moral dignity of victims by sacrificing it to the interests of stability.

Where amnesties appear fully entrenched, international law and courts become a possible alternative venue for securing retributive justice. International law does not recognize domestic amnesties for serious human rights violations, and the ICC's principle of “complementarity” to national courts allows it to prosecute crimes where the state is either incapable or unwilling to hold trials. Using the ICC or international law, however, is not without challenges; depending on the context, an indictment from an international tribunal may undermine a carefully crafted peace accord or otherwise weaken the likelihood of ending a war. The ICC's recent indictment of top Lord's Resistance Army leaders has arguably pushed back the possibility of bringing the war in Uganda to an end. While amnesties should always be resisted, dismantling them requires a careful consideration of various contextual factors, including the likelihood of the resumption of conflict. The point here is that if amnesties are given they should be conditional, and eventually they should be overturned or rendered legally invalid, either by a domestic court (preferably) or by an international tribunal.

In general, then, we can say that retributive justice, as actualized in trials, focuses on accountability and creating an accurate and credible record of past violations, as well as contributing to the rule of law by rejecting impunity. Restorative justice, articulated through truth commissions, shifts the focus to victims and offers a broader account of the past than that found in trials, thus providing an important complement to the retributive impulse driving prosecutions.

Restorative Justice and Truth Commissions

Over the past several decades, outgoing rulers have created amnesties to protect themselves from subsequent prosecution. In Latin America alone, numerous amnesties have been enacted: Chile (1978), Brazil (1979), Guatemala (1996), Argentina (1986, 1987), Uruguay (1986), Nicaragua (1990, 1991, 1993), El Salvador (1993), and Peru (1995). Where amnesties were passed, truth commissions have been established in lieu of prosecutions. While traditionally commissions served as alternatives to trials, in recent years they have served a complementary role, addressing issues that courts have been unable to handle adequately.

A truth commission is an official investigative body with a mandate to study violations that occurred during a particular time frame in a specific country. A commission normally exists for a relatively short period of time (i.e., a few months to a few years) and produces a final report of its findings that may also include recommendations. Its main task is to create an official account of past abuses.⁷ The techniques for amassing evidence can be varied and may include forensic anthropological investigations, depositions from a wide array of persons, and archival research. Furthermore, commissions may include a series of institutional reform and reparations recommendations in order to help prevent such abuses in the future. At the core of a commission's work is a commitment to acknowledging victims and restoring their sense of dignity and moral worth. Thus, advocates argue, truth commissions are seen as paradigmatic examples of restorative justice.

There are several differences between truth commissions and tribunals. Truth commissions generally lack subpoena powers and cannot prosecute perpetrators. Justice as criminal punishment is eschewed for the production of a history that explains violations in the context of broader social and political processes. Over the past few decades, truth commissions have become quite popular. Over twenty-five commissions have been established since the early 1980s, and the more successful ones have included prestigious citizens (e.g., authors, public intellectuals, lawyers) as commissioners, lending greater legitimacy to the commission's work. Unlike trials, commissions tend to be receptive to civil society input and often receive information and testimony from the NGO community and other interested parties, giving commissions a special place between civil society and the formal state.

Supporters offer several justifications for using truth commissions and pursuing restorative justice.

1. The primary purpose of such commissions is to produce an accurate public record of a country's past crimes, through archival and forensic truth seeking complemented by interviewing survivors and perpetrators (Boraine 2001).

2. Advocates point to the therapeutic benefits of truth commissions. By providing victims with a sympathetic public platform to present their stories, commissions contribute to their personal healing and offer a phenomenological or experiential truth that complements archival and forensic truth (Krog 1998).

3. Concomitantly, the public presentation of survivors’ stories incriminates perpetrators, offering a kind of punishment akin to that found in a trial and achieving a powerful symbolic punishment through the shaming and public stigmatization of violators (Kiss 2001).

4. Public testimonies contribute to societal reflection and, ideally, healing in society itself, helping restore and affirm the democratic values of respect and tolerance, and “repair” the “torn social fabric” (Tutu 1999).

5. Lastly, because of their systematic analysis of patterns of abuse and relevant institutions, commissions can provide policy recommendations for institutional reform and restructuring, as well as reparations programs for victims (Crocker 2001).

Truth commissions seek to create an accurate report of past crimes. They “clarify uncertain events, and lift the lid of silence and denial from a contentious and painful period of history,” in the words of Priscilla Hayner (2001, 25). Because of a combination of investigate techniques, including archival research, interviews, and field investigations (e.g., unearthing mass graves), commissions are well positioned to present a particularly complex and rich history of abuse. This combination of numerous investigate methods and access to often secret information can provide a comprehensive macro perspective that is frequently lacking in transitional contexts. Argentina's truth commission documented the disappearances of nearly 9,000 persons, providing a fuller picture of the atrocities committed during that country's “dirty war” (Argentine National Commission on the Disappeared 1986). Peru's truth commission report documents a twenty-year conflict between guerrillas and the state that resulted in an estimated 69,000 deaths, nearly three times the previously estimated number (Peru 2003). South Africa's Truth and Reconciliation report (1999) detailed thousands of cases of torture, extrajudicial killings, and other abuses that had remained hidden throughout the apartheid period. These reports can complement trial records by establishing general patterns of violations that may be overlooked in prosecutions, and their wider investigative focus makes them ideal for analyzing the institutions and policies behind systemic abuse.

In certain instances, as Priscilla Hayner (2001) and Mark Freeman (2006) have pointed out, commissions do not uncover crimes so much as publicize what is known but could not be stated openly. By publicizing atrocities, commissions confront official denial and the culture of impunity that protects violators. A commission's report can encourage debates about responsibility and complicity, and in the process force a society to rethink its obligations to its fellow citizens who were victimized. They do not, of course, offer a finalized account of the past, but they can “narrow the range of permissible lies” (Ignatieff 1996, 113).

A reasonably accurate historical understanding is necessary for the other normative goods to take root. Accountability is impossible if basic facts, including who the perpetrators are, remain hidden or otherwise unknown. Reparations, too, require knowledge of who the victims are if they are to be inclusive and morally defensible. Without a somewhat accurate, empirically based account of the past, there is less likelihood that shared social space can be created, or that former enemies will ever accept alternative histories as any more than lies or willful misrepresentations.

Clearly, amassing facts is not enough; the truth must be publicly disseminated and generate public debate. Because they occupy a unique place between the state and civil society and enjoy significant media attention, truth commissions are well situated to engender debate and are able to legitimize civil society programs about the legacies and challenges of the violence. Both the South African and Peruvian commissions conducted public hearings to gather victim testimony around their respective countries, and they successfully used the media to disseminate their hearings. Commission reports are not final accounts of the past, but rather often serve as an important first step at understanding the history of violations and attendant culpability, and may even spur broader debates about moral responsibility. Researchers continue to add to and modify the commission findings, as the cases of Chile and Argentina show, but this does not detract from their particularly important role in catalyzing debate at all levels of society, from elite politics to civil society to interpersonal relations. They can provide a baseline of historical understanding by identifying primary actors, events, and patterns, and consequently undermine denials.

Truth commissions do, however, face some serious limitations. Though retroactivity is not a problem, scope and politicization are challenges. The scope of investigation is a particular challenge, as most commissions must consider an enormous range of crimes during their relatively short life span. Given their limited period of operation, normally two years or less, and their often tight budgets, most commissions can investigate only a few hundred cases while briefly mentioning perhaps a few hundred others. Even well-funded and professional commissions such as South Africa's and Peru's are faced with choosing among thousands of violations that bring charges of instrumentalization. Which cases are paradigmatic examples of violations? Which best represent the crimes committed and highlight abusive policies? How were they chosen?

Politicization is equally problematic; it is a concern that emerges with the way in which a commission frames its account of the conflict and the evidence it marshals in doing so. Truth, as we have seen, is inseparable from processes of interpretation and storytelling, and commissions are tasked with presenting—and re-presenting—a narrative account that makes sense of the past, given the information they are able to collect. By documenting violations committed by all belligerents they may find that one side is responsible for the majority of crimes, or in any case, a disproportionate number of them. Commissions are not neutral and their normative aspects cannot be suspended by turning to supposedly neutral, non-contextual standards. Nevertheless, political manipulation has remained a problem for many commissions, and only institutional and budgetary autonomy as well as cultivating relations with broad sectors of civil society can provide at least some protection from explicit state interference (Freeman 2006).

The key concern over commissions is whether they provide a satisfactory form of accountability. Some observers remain skeptical about a commission's ability to secure meaningful accountability because they cannot prosecute violators (Llewellyn 1999; Robertson 2000). As products of political compromise, they remain incapable of providing the robust justice found in courts. Undoubtedly, countries have often established commissions when it seemed clear that prosecutions would be impossible due to amnesties. Other scholars, however, have defended commissions’ ability to achieve accountability in moral terms, as an alternative to formal retributive justice. Elizabeth Kiss (2001), for example, has claimed that while formal legal punishment may not be a possibility open to commissions, the focus on victims and their suffering effectively condemns perpetrators publicly, bringing some measure of justice. While Kiss may perhaps overstate this point, truth commissions do contribute to accountability in several ways. David Crocker (2001) has noted that they may provide evidence for future trials, shame perpetrators publicly by tying them to abuses, and make well-informed recommendations for judicial reform. Because their work includes the systematic investigation of crimes, the evidence they amass can be useful for prosecutions, and in several cases commissions have provided their files to prosecutors to be used in future prosecutions. In Peru, Argentina, and Chile prosecutions have either followed, or are expected to follow (eventually), the publication of the final report. The Guatemalan Commission on Historical Clarifications (Comisión para el Esclarecimien to Histórico 1999) final report specifically recommended prosecutions in its concluding chapter, and in Sierra Leone and East Timor, trials and commission investigations proceeded together, though there were jurisdictional conflicts over sharing information.

More specifically, the identification of violators in a final report functions as a sort of symbolic punishment by publicly shaming and undermining their self-serving stories of courage and patriotism. The importance of shaming, especially when specific actors are tied to particularly horrendous acts, is certainly a kind of punishment. South Africa's final report powerfully condemned the apartheid regime by drawing on a wide array of archival and testimonial evidence in support of its claims, and those who were associated with the regime's crimes suffered public condemnation and humiliation.⁸ Pinochet reportedly remained angry and humiliated until the end of his life over charges that he was responsible for massive crimes, even though he was never found formally guilty. It may be preferable that commissions actually name perpetrators in their final reports, establishing a tighter link to individual responsibility than would be the case with generic references to institutional culpability; commissions in Chad, East Timor, El Salvador, Sierra Leone, and Liberia, among other places, enjoy this authority. This has the benefit of furthering truth telling, accountability, and possibly even victim acknowledgment, since it ties a face to actual atrocities. El Salvador's commission realized that given the existing amnesty, naming perpetrators would be the closest it would come to assigning individual responsibility, and thus published names in its final report. In some cases, however, perpetrators cannot be named but the evidence clearly points to them, achieving something of the symbolic punishment evident above. In settings where trials are impossible because of transitional constraints, humiliation can serve as an important proxy for formal justice. Nevertheless, “naming names” faces some serious drawbacks: Accusations can be made for a number of personal or political reasons and the opportunities to defend oneself publicly and forcefully are few and often inadequate. Particularly where multiple sides committed violations in a civil war or where a large part of the population was complicit in state domination (e.g., as in Eastern Europe), naming risks overemphasizing the responsibility of some while allowing others to avoid unwelcome publicity.

Finally, commissions can give helpful recommendations for judicial reform by identifying corruption and politicization that can facilitate—and legitimize—further abuse. In Peru, El Salvador, and Guatemala, commissions have pointed to compromised judiciaries as key agents for human rights violations. Their work in identifying judicial co-optation and recommending comprehensive reforms is important for accountability and the rule of law. Commissions, of course, cannot replace trials as the locus of accountability but they can function in a complementary relationship with courts. Rather than seeing them in conflict—an increasingly anachronistic and simplistic view I discuss further below—they should be understood as potentially compatible.

Since the mid-1990s, a number of commissions have followed South Africa and incorporated public hearings, welcomed by scholars as a primary device for extending recognition to victims.⁹ Much recent scholarship has extolled the supposed social healing dimension of victim testimony by arguing that allowing victims to recount their experiences will strengthen social relations and contribute directly to reconciliation. The dynamics of public social catharsis are strongly disputed, and it is not at all clear that public hearings have such a directly positive impact on either victims or society (Fletcher and Weinstein 2002). Part of the difficulty in this debate appears to be the assumption that commissions are the only locus of victim recognition. Framed in such a reductive way, it is unsurprising that complete victim recognition is not achieved through the brief public testimony of some survivors before commissioners. A more realistic view sees commissions as an initially central location for victim recognition that provides a public and protected space where they recount their stories and experiences. But victim testimony gives concrete, emotionally charged perspectives on lived suffering, and may generate public debate and reflection on the past. Furthermore, public testimonies demand that victims be recognized as bearers of moral worth (and legal rights)—people who can no longer be ignored or marginalized in the interest of stability. Thus, public testimony may draw the attention of an uninformed or skeptical public and begin a difficult process of social reexamination and reflection, but its actual benefits for victims is significantly less clear. In any case, while a trial may draw on victim testimony, its focus on prosecutions means that victims at best serve an ancillary capacity in that forum and meaningful victim recognition there is unlikely.

Commissions may also recommend reparations for victims and their families. As discussed in Chapter 2, reparations can take a number of forms: They can be symbolic or material, and collective or individual. They may, for example, give individuals medical or psychological assistance, or provide them with financial compensation for physical harms and destroyed property and goods. Although reparations cannot give a morally complete answer to abuse they can positively affect the livelihood of victims and clearly signal the state's acknowledgment of its responsibility for crimes. A number of commissions have recommended reparations, and in South Africa, Argentina, and Chile they were provided with precisely these goals in mind (Hayner 2001; Verdeja 2006). Nevertheless, reparations face a number of problems that speak directly to the issue of victim acknowledgment. For example, do individual material reparations address the need of survivors for moral recognition? It is difficult to give an answer in the abstract, so instead we must to turn to the recipients themselves. Here, the responses are often contradictory, with some recipients arguing that reparations qualify as a form of moral redress and others rejecting payments as a crude form of self-exculpation on the part of the state (Verdeja 2000). While welcoming just compensation, victim groups often fear the state will use individual payments as an excuse to ignore victims in the future, arguing that they have been adequately compensated for their suffering. Rather than use reparations as a strategic measure to neutralize public debate or isolate victims, they should be crafted to express the state's awareness of its responsibility and contribute to developing public trust in government institutions over the long run.¹⁰ Reparations are legitimate to the extent that they are not perceived as merely cheap responses to violence but rather recast compensation as a form of moral recognition by the state. A truth commission's endorsement of reparations can help generate public awareness of the depth of violence and its symbolic and practical legacies, while forcing a reticent population to reflect on its obligations to its fellow citizens.

Commissions are significantly less successful, however, as institutions promoting the rule of law. The rule of law is most clearly promoted in the judiciary, through fair and transparent trials that systematically uphold existing laws and norms. Truth commissions, of course, do not guarantee substantive or procedural due process protections or other defendant rights, and for these reasons they should not (and do not) serve as venues for prosecution. They can further the rule of law only indirectly, by recommending reform of problematic state institutions, prosecutions of abusers, removal of corrupt or otherwise unqualified justices, and strengthening individual legal rights. Because these can only be recommendations truth commissions have no binding power to carry out these policies—they must depend on the will of political leaders, which is often a despairing thought.

I discussed earlier the importance of truth for reconciliation, since without an understanding of who did what to whom any possibility of reconciling former enemies is likely to fail. In this, truth commissions can undoubtedly play an important role. On occasion it is argued that commissions are crucial if society is to overcome the deep divisions of the past. The strength of this argument is difficult to gauge: Reconciliation is a long, uneven process that may benefit from a truth commission but it also requires reconciliatory efforts at political, social, and interpersonal levels. Provided that commissions not be normatively overburdened—provided, that is, that we do not expect them to achieve all of the goals of reconciliation alone—they may contribute in the long run to societal reconciliation by recasting issues of responsibility, victim recognition, and accountability against the background of historical evidence of atrocity. Their position between the state and civil society may allow them to function as facilitators for long-term reconciliation.

Tribunals and truth commissions, and retributive and restorative justice more generally, share a number of goals: They seek to uncover past atrocities, hold perpetrators accountable, acknowledge victims, and promote the rule of law. They differ, however, in emphasis: The retributive approach promotes accountability over victim acknowledgment, while restorative justice endorses the importance of recognizing victims and rebuilding social relations over the prosecution of perpetrators. This does not mean that they are essentially contradictory; on the contrary, they may be compatible, and it may be in fact desirable that they operate together under certain transitional contexts. Vasuki Nesiah (2006) has argued that it may be best to stagger their implementation to avoid contradictory aims, beginning with commissions and then focusing more narrowly on legal approaches. The benefit of this is that broader patterns of violence are identified and publicized before pursuing individual cases of wrongdoing, thus mitigating the possibility of highly particularized accounts of wrongs that displace our understandings of the systemic and institutional dimensions of repression and violence. Commissions provide a wider context for understanding the actions of individual perpetrators and chains of command, and trials can devote their resources to the most extreme cases and their orchestrators.

Staggering may indeed be beneficial. However, when prosecutions and commissions work concurrently, as in East Timor and Sierra Leone, sharing information can bring with it a host of practical and normative problems. The Sierra Leone Truth and Reconciliation Commission ([SLTRC] 2004) and the Special Court for Sierra Leone ([SCSL] 2003) were established separately with the expectation that they would work to address the country's violent legacy. The commission encouraged violators, witnesses, and victims to speak in public hearings as part of its mandate to create “an impartial historical record” and promote national reconciliation. The commissioners saw their work as fundamentally different from, but in harmony with, the SCSL:

The Special Court is also in search of the truth, but the Court's truth will necessarily be limited to the criminal responsibility of the accused…. The Special Court and the TRC [Truth and Reconciliation Commission] have essentially different, although complementary, roles to play. Whereas the TRC cannot replace judicial investigations into the criminal responsibility of those that [sic] bear the greatest responsibility, the Special Court is not as well suited for a broader inquiry into the causes, nature and circumstances of the conflict. (Sierra Leone Truth and Reconciliation Commission 2004, vol. 1, ch. 3, para. 11)

This institutionalized division of labor, however, did not work very well in practice. Many Sierra Leoneans were concerned that self-incriminating testimony given before the commission would later be used in the SCSL's prosecutions, and numerous ex-combatants refused to participate in the hearings. The two institutions also disagreed over the use of amnesties and whether the court's subpoena power would extend to the commission's files (Schabas 2004). Many hearing participants remained confused about the differences between the court and the commission and were unclear about what was expected and permitted in commission testimony. Tim Kelsall notes that these confusions and fears produced testimony that was “rarely able to get beyond detached, factual statements on the part of victims and half-truths, and evasions and outright lies on the part of perpetrators” (2005, 380). This is not, however, merely a case of institutional clashes. Rather, it shows how the institutionalized pursuit of two differing normative goals—truth and accountability—can come into conflict. The SLTRC's legitimate commitment to truth telling was hampered by the court's legitimate desire to amass evidence for prosecution, thus affecting and ultimately distorting the testimony at public commission hearings and satisfying neither the truth nor accountability. Any move to broaden the historical understanding of the civil war would invariably require particular information about individual combatants and their actions, but in a conflict with mass atrocities and the likelihood of prosecution, many people were unsurprisingly unwilling to participate in public hearings. The result was a process of strategic truth telling that was heavily shaped by the threat of trials. Can these competing institutional aims be brought into harmony in future settings? Perhaps, but this requires answering some difficult political questions that have consequences for truth and accountability. Who should mediate the relationship between the institutions? Who prioritizes goals when they clash, and how should they be prioritized? Should commissions name alleged perpetrators in their final reports, even when courts fail to prosecute them on narrow technical or procedural grounds? Doing so risks producing two competing historical accounts and differing (and possibly contradictory) assessments of individual responsibility; if the procedural protections and evidentiary requirements of courts are taken seriously it would be highly problematic, at the very least, to discard acquittals in favor of a lower commission standard based on more flexible testimonial rules. And what if a commission has confidential evidence conclusively showing an individual's culpability or innocence? Should it share this with the court, even if not explicitly requested by the court? These are not merely technical questions about jurisdiction and mandate; instead, they pose fundamental challenges for the types of truths and accountability that are ultimately produced. Staggering these institutions may mitigate in the short term some of the concerns about information sharing and insulate the commission from public perceptions that testimony will be used in trials, while at least maintaining the possibility of future prosecutions.

Even if these institutional clashes can be lessened, complementarity is not always easily achievable. There are a number of other factors that constrain the use of truth commissions and tribunals and affect their ability to promote reconciliation.

Part II: Practical Constraints

The previous section identified the theoretical issues at stake in employing tribunals and truth commissions in post-atrocity societies. But the options available to transition architects are not so extensive; they must work within specific political, social, and economic parameters that constrain their choices. In this section, I consider several factors that play a critical role in assessing the viability of tribunals and commissions, and, more importantly, help us calibrate their contributions and limitations to reconciliation—and how this level is both necessary and insufficient for larger reconciliation.

Degree of Institutionalization and Legitimacy of Previous Regime

The degree of institutionalization and legitimacy of the perpetrating regime affects the likely success of efforts to seek legal recourse for political crimes. Institutionalization means at least three things: (1) the regime rules through the use of formal and bureaucratic mechanisms, so that different aspects of governance are managed and coordinated by various departments; (2) it has penetrated civil and political society systematically and deeply; and (3) it seems stable and durable.¹¹ Institutionalized perpetrator regimes are essentially Janus-faced: They assemble complex legal justifications for their actions, bureaucratize violence, and generally rationalize repression, yet also engage in extra-legal terror against political opponents and the broader population, particularly through the use of secret police, death squads, disappearances, and massacres.

Institutionalization is normally accompanied by an increase in legal justifications for crimes through the emergence of a large body of state-security law, and in this sense we can say that a perverted “rule of law” exists. Here, rules, edicts, statutes, executive orders, administrative decrees, and legislation all work to justify what is essentially a terroristic regime, giving a kind of legal patina to an otherwise despotic state. Concomitantly, the state employs its military and security apparatus to violent ends, often working outside (but in harmony with) the established legal framework. The upshot may be a large body of law and archival evidence identifying the organization and systematization of state-sponsored violence. The more institutionalized and centralized the terror, the more likely it is that a significant body of documentation delineating the coordination of bureaucracies and security forces will exist. Of course, the peculiarities of a negotiated transition may make acquiring this information difficult, particularly if the perpetrating institutions manage to retain some degree of autonomy. In Chile and Argentina, the armed forces were fairly successful at retaining control of records on their “dirty wars,” though what has emerged indicates that in both instances the state's violence was highly rationalized and bureaucratized. In South Africa, the armed forces and national police destroyed many of their records of death-squad activity, and the militaries of Central America have simply refused to hand over damning internal documents.

Nevertheless, systematized state terror complemented by a robust body of documentation can facilitate the truth seeking and prosecutorial goals of tribunals, and thus institutionalized regimes make good candidates for trials. Strong and well-documented links between superiors and subordinates illuminate hierarchies of legal (and moral) responsibility, making it more likely that prosecutions will be successful.

But institutionalization poses obstacles as well. Complex, multi-layered systems of repression complicate the criminal-legal understanding of responsibility (i.e., normally understood as predicated on individuals and not institutions). If the perpetrator regime were highly institutionalized, with a wide web of repression implicating numerous bureaucracies and agencies (e.g., as in South Africa and Eastern Europe, in different ways) and enjoying widespread support or at least acquiescence—and thus arguably legitimacy—then prosecution of individuals can be vulnerable to charges of selectivity: Only some violators face prosecution, while the majority (i.e., normally the higher-echelon violators) will escape justice. Where these considerations hold, a commission may offer an important complement to prosecutions by illuminating how repression entails the cooperation of numerous coordinated institutional actors.

Independence and Fairness of the Judiciary

In some transitions, the judiciary remains an enclave of the past regime, significantly limiting the ability of victims to obtain redress. In these instances, trials are unfeasible, and truth commissions may be the only viable domestic institutional response, at least until (or whether) the judiciary is reformed. Nevertheless, there are alternatives: regional or international fora, such as the Inter-American Court of Human Rights and the ICC, and, under certain conditions, case-specific tribunals assembled by the United Nations. This latter approach requires UN Security Council support, which in turn poses numerous practical obstacles. The apprehension of some major powers, particularly the United States, toward the expansion of universal criminal jurisdiction impedes the success of the ICC, though as mentioned earlier the hybrid tribunals like the SCSL may be viable.¹² Regardless, the reconstruction of the national judiciary remains the best hope for domestic accountability and a crucial prophylactic against future impunity. Eliminating impunity requires an independent and well-run judiciary. Because accountability is situated at this level, a weak judicial system can fatally undermine the likelihood of reconciliation, thus leaving authoritarian enclaves intact.

Extent of Perpetrator Population

In some instances, there exist relatively few overt perpetrators and many “beneficiaries,” or persons who benefit from the political circumstances without actively participating politically. In South Africa, for example, apartheid benefited all white South Africans, regardless of their political affiliations or relations to the state. The apartheid government enjoyed the tacit support of much of the (Afrikaner) white population, although many were not active oppressors. Other cases are markedly different. The political terror of the Hutu Power regime in Rwanda included the active participation of many Hutu civilians—thus, the perpetrator population was high relative to the number of beneficiaries. The same can be said of Cambodia. Although the Khmer Rouge ruled through terror and did not enjoy wide-ranging support outside their own ranks, there were few beneficiaries of the regime who were not implicated in gross human rights violations.

In all of these cases, tribunals can offer an important, though limited, contribution to accountability. Where there are relatively few overt perpetrators and many beneficiaries, the latter cannot be held legally accountable; however, it would be misguided simply to ignore their moral responsibility. A truth commission can serve as an important complement to trials by highlighting that complicity and responsibility go well beyond the narrowly understood notions of criminal liability that are characteristic of criminal prosecutions. In South Africa, the commission investigated the role that business, legal, medical, religious, and other professional communities played in supporting the apartheid regime. Investigations of this sort illuminate the wide support that some terroristic states enjoy by morally implicating beneficiaries and countering claims that the latter were ignorant of the state's violence. Nevertheless, even this is insufficient; a robust public sphere open to critical reflection is an important resource for ensuring that state institutions like the judiciary or commissions do not wholly determine complex normative issues of responsibility and perpetrator definition. As the following chapter makes evident, civil society actors can raise many of the difficult questions of responsibility, such as the moral status of bystanders and beneficiaries, in ways that are not possible through trials and even truth commission investigations.

Mode of Transition

A key element in assessing what type of institutional response to pursue is the mode of political transition between regimes. While I discussed this earlier, some points bear repeating: Where the transition is achieved through a complete victory in war or other radical break with the past, successor elites have the political capital to impose trials with little concern for the desires of their enemies. The Tokyo and Nuremberg tribunals, as well as the domestic successor trials in Rwanda, underscore the wide latitude that victors have in pursuing retribution. Where the transition is tightly “pacted,” or negotiated, trials are less viable politically. Previous elites may still retain enough power to trump the possibility of trials, either through the creation of an amnesty or the threat of renewed violence. Here, truth commissions have been offered as an alternative response to the past, investigating elites’ actions and shaming them through the publication of a truth report identifying their crimes.

Material, Financial, and Personnel Resources

Both trials and truth commissions are expensive, and poor countries emerging from a conflict with a devastated infrastructure and weak economy may be unable to pursue these expensive institutional responses, at least not without significant foreign support. Tribunals, in particular, are especially costly. A trial of a high-level perpetrator can cost millions of dollars, making numerous trials difficult to justify from a strictly budgetary perspective, particularly when a country is faced with myriad other pressing humanitarian concerns and some of those funds could be used to alleviate the plight of survivors and others. International funding is often difficult to secure, and there may be few qualified personnel to carry out a trial. The Rwandan genocide left only a handful of lawyers in the country, creating a seemingly insurmountable obstacle to formal domestic prosecutions (indeed, Rwanda turned to the use of gacacas, an alternative, allegedly “native” legal system that could process the accused in quicker succession). With a shortage of attorneys to prosecute—much less defend—suspects, the likelihood of fair trials is seriously diminished. It would be a mistake, of course, to choose commissions over trials simply on budgetary grounds. To do so would make a mockery of the principle of a moral response, thus delegating the moral calculus to the rather profane level of financing. Nevertheless, budgetary constraints are constraints. South Africa spent approximately $18 million a year on its commission, a sum unmatched by any other similar body, and commissioners nevertheless felt their work was underfunded. So, too, with the UN-sponsored truth commissions in El Salvador and Guatemala (Lester 2000).

Closely related to the above resource factors is political will. Does the successor regime have the will and commitment to actually pursue and sustain a rigorous, institutional response? Human rights advocates have often found a great deal of rhetorical governmental support for their ambitious projects, only to realize later that the regime has no interest whatsoever in matching its words with deeds. The lack of interest is, unsurprisingly, reflected in the lack of money and resources available for tribunals and commissions. Uganda assembled two commissions—in 1974 and 1986—that were duly ignored by the state, and Ecuador's 1996 commission ended inconclusively after five months, without producing a report of its findings. Zimbabwe's 1985 state-sanctioned commission, investigating state repression in the Matabeleland, never released its report; the government quashed its publication, claiming the findings would unleash “ethnic conflict” (Freeman 2006; Hayner 2001). Political will and sufficient resources are crucial if institutional responses to the past are to succeed. Otherwise, they will amount to nothing more than empty promises.

Possibility of Future Social Unrest through the Use of Trials and Truth Commissions

There exists the very subjective factor of predicting—reckoning may be a more appropriate term—whether tribunals or commissions will contribute to the resumption of violence, be it through coup, civil war, or revolution. Political elites must engage in a delicate calculus to ascertain whether certain kinds of institutional responses may lead to a renewal of violence. Highly pacted transitions tend to result in authoritarian enclaves in politics, the economy, and occasionally the armed forces, thus reducing the possibility of trials. Truth commissions may offer the only possibility of a moral response without resulting in renewed conflict and retributive efforts will have to be pursued in the international arena, with all of the great-power pitfalls that entails, or be pushed into an uncertain future. But negotiating the straits of pacted transitions does not entail the abandonment of justice. Rather, it requires the espousal of novel forms of accountability, truth seeking, and victim recognition as a means of promoting the process of reconciliation. It also points to the importance of civil society in promoting reconciliation.

Salience of Specific Cultural and Religious Discourses for Furthering the Cause of Reconciliation

Trials and truth commissions should draw from particular local discourses that can strengthen their legitimacy. Archbishop Tutu (1998) often turned to Christian notions of forgiveness as a primary virtue in dealing with perpetrators, and local leaders frequently called for a collective spirit of ubuntu, roughly meaning “humaneness,” to emphasize the importance of reestablishing just and meaningful social relations. These notions and others offer a deep discursive source that can feed broader efforts at encouraging mutual respect. Drawing on local discourses can help ensure that reconciliatory efforts will have greater resonance in the population. One novel approach has been to draw on traditional practices of conflict resolution to bring communities together.

Traditional Justice Mechanisms

This chapter focused on the role of former trials and truth commissions, which represent two of the primary institutional responses to mass atrocity in post-conflict settings. Nevertheless, responses have also taken a decidedly autochthonous turn, especially in sub-Saharan Africa, and here I say a few words about these important recent developments. My comments are limited because there still remains relatively little ethnographic and comparative scholarly work on these developments. In Burundi, Mozambique, Rwanda, Sierra Leone, and Uganda, state officials and local leaders have encouraged traditional practices to reintegrate former combatants and rebuild social relations. These practices are quite varied but are based on complex rituals that aim at social healing and truth telling and include extensive community participation. They often include some component of accountability, such as the requirement of a confession, community labor, or reparation, but with the exception of Rwanda's gacaca do not rely on formal punishment per se, such as a prison sentence. Their primary point in common is that they eschew the formal rational legalism typical of international and Western human rights law for informal communal traditions that are highly ritualized. The use of traditional practices stems from a common concern that formal courts are incapable of addressing the full extent of atrocities and their social effects, and consequently alternative approaches are needed. International courts like the ICTR and the ICC are often perceived as remote, expensive, and largely irrelevant, and do not speak to the concerns of affected societies. Even domestic trials, many argue, may have little impact on the immediate needs of survivors and communities or are otherwise incapable of handling the enormous number of persons implicated in the violence. Truth commissions may appear less remote, but a commission rarely gives sustained attention to any one locality; its interest is in producing a report on national patterns of violence, not necessarily micro-level reintegration. Ideally, these traditional approaches focus on preexisting local or regional customs for resolving conflict and maintaining (i.e., reestablishing) social solidarity on morally acceptable grounds. Some of these practices, such as the Ugandan ritual of having child soldiers step on an egg, dramatically capture particular cultural rituals of social repair (Baines 2007). They are also all communal: They depend on the participation of the entire community, as the assumption is that the violence has harmed not only individuals but the community as well. The question, naturally, is “How successful are these approaches for promoting reconciliation, and are they more effective than courts or commissions?”

It seems to be too early to tell, largely because these traditional approaches are so different from one another and have not been employed systematically over long periods of time in any one place. Indeed, many of them are hardly traditional: While all appeal to tradition as a source of legitimacy, some are significantly different than their predecessors though they remain at least partly rooted in traditional practices, such as the modern mato oput ceremonies in Uganda or the magamba rituals of Mozambique, but others represent fundamentally new institutions, like the Rwandan gacaca. Nevertheless, the ethnographic work on these institutions show mixed results (Huyse 2008).

In Mozambique, for example, the government did not pursue explicit reconciliation or retributive policies following the civil war, but communities in the central part of the country drew on local practices and customs to develop their own reconciliatory approaches centered on the magamba (spirits of dead soldiers returning to the land of the living to seek justice). These highly ritualized ceremonies require that the perpetrator accept responsibility for wrongs before the magamba and the community, and after a show of contrition, village priests, or curandeiros, drive away the magamba and begin the process of restoring social bonds. By taking responsibility and explaining their actions, perpetrators help return dignity to their victims and repair badly damaged communities. The magamba ceremonies appear to enjoy popular legitimacy, and recent ethnographies show that many family members of victims have responded positively to the reintegration rituals and accepted that the contrition shown by ex-combatants represents at least a modest form of moral recognition for the deceased (Igreja and Dias-Lambranca 2008).

In Rwanda, the response has been significantly different. The original Rwandan gacacas were village-based institutions meant to settle community disputes including theft and property damage (and possibly manslaughter), but not mass murder. They were presided over by local elders held in high esteem, the inyanga-mugayo, and their decisions carried the weight of customary authority. In 2002 the Rwandan government established modern gacaca to process the enormous number of perpetrators in jail after the genocide, and the program was implemented nationally in 2005. These new gacaca hear cases involving common killers, torturers, and looters, but not rapists or the architects of the genocide, who instead are tried in domestic courts or by the ICTR (Rwanda 2008). Like their predecessors, modern gacac as meet in a public setting where perpetrators are confronted by victims and other accusers in a relatively free-flowing exchange, and community leaders mete out a punishment (including prison) and call for reparation. But the differences between the two types of institution are profound, and a number of observers point out that the contemporary gacaca enjoy little connection to their predecessors. Indeed, the claim that they are “traditional” appears to be an effort by the government to enhance their legitimacy; they were essentially developed from the top down and imposed on local communities. Modern gacaca judges rarely enjoy the authority of elders (a sizeable minority of whom have been implicated in the genocide), and the extensive violence seems to have destroyed the legitimacy of many traditional customs and institutions, including the legitimacy of the gacaca themselves (Ingelaere 2008; Kirkby 2006). Furthermore, many victims risk retraumatization in gacaca hearings and face the prospect of having to live next to their tormentors after the latter have paid what is often considered a relatively small reparation or served a brief period in prison. Many accounts indicate that in these sessions victims are often ignored or disparaged and rarely receive meaningful recognition, and there are few programs in place to support their psychological needs after testimony, though a national fund for victim support has been established. Recent studies also show that in many cases gacaca hearings have increased intracommunal conflict (Waldorf 2006).

One of the primary difficulties facing these community justice mechanisms is the scale of the violence, which they are ill-equipped to handle. This is, of course, also a problem for formal judicial systems, but these traditional mechanisms often developed to handle significantly lesser transgressions where the background cultural norms remained intact. The scale of violence, however, can tax the norms on which these institutions rely for legitimacy. The complicity of local leaders in the violence also weakens the traditional authority structures at the center of the reconciliation ceremonies, thus leaving many participants angry, dismayed, and skeptical of community justice.

International human rights organizations such as Human Rights Watch (Roth and Desforges 2002) and Amnesty International (2002) have criticized some of these traditional approaches for their weak commitment to accountability and failure to employ explicit and codified due process criteria. Some of this is misplaced: All of these approaches contain an element of accountability. In the magamba ceremonies perpetrators are required to accept guilt for their actions, and in the gacaca punishment can include prison sentences of several years. In Burundi, the bashingantahe, a traditional conflict-resolution ceremony, explicitly requires acceptance of responsibility. Nevertheless, because few of these institutions have codified rules of procedure, explicit evidentiary criteria, or formal protections for the accused, they seem to lack the due process protections of formal trials. Even the gacaca, which have formal rules, suffer from undertrained judges and assistants and significant participant confusion on the process and expectations of the hearings. Some of these accountability problems may be mitigated over time, as the specifically practical and institutional challenges that traditional approaches face are better understood.

A more pervasive limitation concerns their appropriateness in ethnically diverse societies. The traditional practices in Mozambique, Sierra Leone, and Uganda are quite culturally specific, and do not translate well into other cultural milieux in their respective countries. This is partly a source of strength, as their cultural specificity means that they may resonate strongly with particular communities and thus (potentially) enjoy enhanced legitimacy, but it also points to their inherent limitations; different communities have different traditional conflict-resolution rituals and may not be able to deal with intercommunal conflicts. Indeed, the wars in Sierra Leone and northern Uganda crossed national borders and ethnic groups, but traditional mechanisms have not been very effective in dealing with intercommunal violence (Alie 2008; Ojera 2008).

A final point relates directly to the issue of recognition. A primary focus of these institutions is to provide meaningful recognition of victims. To the extent that survivors are included as active participants in these ceremonies, their experiences and claims to dignity can be acknowledged. Unlike formal trials, many of these institutions focus primarily on the suffering of the community and the need to rebuild it, and thus emphasize traditional restorative justice rather than legalistic retribution. Nevertheless, many of these tradition-based institutions are male dominated, and indeed at least part of their legitimacy comes from the authority of male elders. Women and youths are often marginalized in hearings, both as victims and as witnesses, and older male testimony is often given greater weight than women's testimony (Burnet 2008). Some of this has changed recently, with women enjoying more authority in Sierra Leonean and Rwandan hearings, but ensuring greater participation for and acknowledgment of women and younger participants requires rethinking some of the primary gender assumptions at the root of traditional justice.

In any case, it seems too early to know definitively how successful these traditional approaches will be.

What then, can we say about moral respect and institutional responses to the past? The centrality of moral respect in reconciliation demands that institutions be used to protect rights, promote the rule of law, and acknowledge the injustices committed against fellow citizens. Trials promote respect by combating impunity and showing the public that individuals retain claims of moral worth and dignity that cannot be abandoned for some higher, common “good.” Through prosecutions, the importance of a rights culture is reaffirmed and unaccountable power is challenged. More importantly, through prosecutions trials publicly express the inherent moral value of victims, indicating that it was wrong to turn them into instruments of some “higher” purpose by using them to achieve some other ends. The centrality of individual moral value, and the concomitant rights that translate that value into legal discourse, are captured through human rights trials.

Nevertheless, it is clear that trials may create more instability and more hatred in the short term. They forcefully distinguish between wrongdoers and victims, and undermine the central claims of perpetrators by showing the consequences of their beliefs and actions. Under such conditions, it is unlikely that social relations will be harmonious, or that former enemies will embrace one another, certainly not in the sense given by Tutu and others. But without remaking the political and moral landscape, as contested and painful as this may be, no significant reconciliation is likely. Reconciliation, after all, is not about a deep moral embrace; it is a state of affairs where erstwhile enemies accept one another as moral beings with legal standing, including the right to participate freely and equally in political and social life without the fear of violence and coercion. Trials can contribute to this precisely by returning some degree of dignity to victims and curtailing impunity.

Truth commissions, perhaps more than tribunals, can refashion public views of victims. Public testimonial spaces provide the opportunity of rehumanization while offering alternative stories that indict misleading historical accounts. Of course, much like trials, commissions may be divisive, as well. They re-situate actors in our historical imaginary and moral understanding, placing formerly admired leaders and their subordinates in the camp of moral, if not legal, opprobrium. This instability carries with it very real risks, but seems necessary if a community is committed to respecting all of its members and recognizing the wrongs of the past. The idea of reciprocal moral recognition that is at the heart of respect becomes worthless if parts of the population remain marginalized and devalued—cast out in the interests of others. Commissions carry some of the difficult load of reconciliation by placing victims at the center of discourses of the past, forcing a society to rethink its obligations to its fellow citizens, and sharply contesting given and unexamined public truths.

These institutional responses are important for the reconciliatory project, but they cannot achieve moral respect on their own. Indeed, none of these goals is possible without elite support. As discussed earlier, elites must show a willingness to engage the past, discuss responsibility and complicity, and show the political leadership necessary to reconcile a pained nation. By adopting a politics of debate and reflection over a politics of violence and fear, elites can signal the population about the importance of reflecting on the findings of trials and commissions. Through their words and their actions, they can give greater legitimacy to the work of these institutions. Civil society, too, must foster respect. Respect and the rule of law require a transformation of the thin notion of accommodation into a thicker conception of mutual recognition; this is something that commissions can encourage because of their special position between the state and civil society. They represent a powerful call for continued public deliberation and reflection, though of course such engagement often falls outside of a commission's control. Indeed, as I have discussed in this chapter, commissions—and to a greater extent, trials—provide closed histories of the past, as reports must eventually be published and judges must eventually reach a judgment. However, these documents may deepen the process of moral reflection in civil society, and catalyze further public engagement over responsibility, justice, and what it means to recognize fellow citizens as moral equals. Individuals, too, must find ways of addressing complex personal issues of responsibility, revenge, forgiveness, and moral transformation, and ultimately adopt principles of mutual respect if the bitterness of the past is to be left behind in some morally defensible way. Institutional responses may not be able to secure reconciliation or achieve respect—indeed, there is often a danger of expecting too much from them too quickly—but the imprimatur of the state that they enjoy provides these institutions with an added legitimacy that can positively shape the social imaginary. For both approaches, respect can be secured only in a political order that recognizes all members of society as moral equals, as recognized bearers of moral worth and dignity; as Mamdani puts it, the boundaries of inclusion are “life itself” (1998).