Notes
Chapter 1
1. On the former, see Schaap 2005, Lederach 1999, and Amstutz 2005. On the latter, see Moon 2008, Norval 1998, and Short 2008.
2. In 2005 the right was affirmed by the UN Commission on Human Rights in Resolution 2005/66 “Right to Truth.” Also see Linden 1994. Nevertheless, though moral arguments in favor of a “right to truth” can certainly be made, it is less clear that international humanitarian law has given a cogent legal argument in its favor; thus to call it “emerging” seems a bit premature. The traditional source cited for this norm is Van Boven 1993, which is understood implicitly to include a right to the truth, since otherwise no reparations would be possible. More explicit is the argument put forth by UN Special Rapporteur Louis Joinet, who writes, “Full and effective exercise of the right to the truth is essential to avoid any recurrence of [gross human rights violations] in the future,” and “[a] people's knowledge of the history of their oppression is part of their heritage and, as such, shall be preserved by appropriate measures in fulfillment of the State's duty to remember. Such measures shall be aimed at preserving the collective memory from extinction and, in particular, at guarding against development of revisionist and negationist arguments” (1997).
3. Human Rights Watch's “Policy Statement on Accountability for Past Abuses” states that there is “a duty to investigate” and that “the most important means of establishing accountability is for the government itself to make known all that can be reliably established about human rights abuses” (1995, 217). Amnesty International's “Policy Statement on Impunity” states that “there should be a thorough investigation into allegations of human rights violations” and that “the truth about violations must be revealed” (1995, 219).
4. A variation on the argument in favor of forgetfulness does not focus on political constraints; rather, it embraces a triumphalist understanding of the power of forgetting, claiming that the will to forget, to maintain an “as-if-not” attitude toward transgression, reflects the will to power of “noble morality.” In On the Genealogy of Morals, Nietzsche argues that the demand for retribution is reactive because it remains shaped by the transgression and limits both victim and perpetrator to a logic of vengeance. He then traces how forgetfulness can be a positive act, representing a sovereign disregard for just deserts (a kind of noblesse oblige, one suspects). He writes, “To be incapable of taking one's enemies, one's accidents, even one's misdeeds seriously for very long—that is the sign of strong, full natures in whom there is an excess of power to form, to mold, to recuperate and to forget (a good example of this in modern times is Mirabeau, who had no memory for insults and vile actions done him and was unable to forgive simply because he—forgot). Such a man shakes off with a single shrug many vermin that eat deep into others; here alone genuine ‘love of one's enemies’ is possible—supposing it to be possible at all on earth” (Nietzsche 1989, 39). Remarkably, Nietzsche rejects forgiveness in this passage as reactive, implying that both punishment and forgiveness are opposites of forgetfulness. The question is whether the as-if-not attitude is morally defensible. I think not. It is morally indefensible to treat a rapist as if the rape had never occurred, and to the extent that the violator may be admitted back into society, it should happen once certain conditions have been met: for example, that he be identified as the rapist in question, that he morally distance himself from the act and show sincere regret and remorse, that he receive some form of punishment (which can include the moral censure that accompanies being outed), and so on. It is difficult to see how letting perpetrators avoid facing the consequences of their actions is a sign of self-actualization for the victims rather than a further illustration of the injury inflicted upon the victims.
5. The term is used in Schreiter 1997 (21). Also see Helmick 2008 (24–29).
6. Also see Muller-Fahrenholz 1997 (12).
7. Indeed, I use the term “reconciliation” in this book with some apprehension, as it contains within it these serious internal tensions that elide its distinctly political aspects. Nevertheless, it has become common currency for discussing processes of social change following violence or authoritarianism, and so I employ it for the sake of convention.
8. The terms are used often in Dawson 2001 (219–243).
9. Though one could argue that the sovereign is also a “victim” of mass atrocities insofar as its mandate to ensure law and order is violated, this misses the point, since frequently it is precisely the sovereign state that commits many of these crimes, and thus to annul its responsibility through pardoning itself offers little consolation or acknowledgment for its victims. Even Hegel, while acknowledging that only the sovereign has the right to pardon, confuses it with the notion of forgiveness: “The right to pardon criminals arises from the sovereignty of the monarch, since it is this alone which is empowered to actualize the mind's power of making undone what has been done and wiping out a crime by forgiving and forgetting it” (1967, par 282).
Chapter 2
1. This distinction is captured in Darwall 1977 (36–49). Also see Bird 2004 (211–215).
2. For a detailed discussion, see Van Boven 1993 (16–34). Also see the UN Human Rights Council (2008) affirmation of the right.
3. The term is taken from Arendt 1993. Also see Crocker 2000 (100) and South African Truth and Reconciliation Commission 1995 (vol. 5, ch. 4, sec. 1).
4. Also see Szymusiak 1999 and Ung 2000.
5. Note that, broadly speaking, justice need not ignore the value of recognizing victims and providing them with some form of compensation. This is clarified below.
6. I use bystander in a moral sense and thus do not include persons who were incapable of acting meaningfully to denounce or oppose abuses. Bystander includes some sense of agency, though this is often highly constrained.
7. For this reason, some commentators prefer the term survivor to victim, for it connotes greater agency. Nevertheless, I use victim and survivor interchangeably throughout the book, with the explicit understanding that both should include a strong sense of agency.
8. Honneth (1995, 249–254) identifies three forms of disrespect that endanger healthy identities: (1) at a very basic level, the injury to self-confidence caused by loss over one's physical integrity (e.g., through torture or rape) and the consequent devastating destabilization of personal identity and predictability in the world, (2) the type of disrespect following the denial of rights enjoyed by other citizens, and (3) the damage done to self-esteem through the pronounced and repeated denigration of one's way of life.
9. It is important to emphasize that while I use recognition in Fraser's sense of status parity to include both redistribution and recognition, I restrict it to the necessities of transitional societies. Broader social justice issues that she analyzes require slightly different theorization, since they engage long-term problems of both transitional and consolidated democracies and thus extend beyond the situation under discussion. One problem with conflating redistributive measures in consolidated and transitional democracies is that victim recognition becomes an issue of social policy, and the particular moral content that restitution includes is diluted into broader debates about redistributive justice. Victim recognition in these transitional settings should be seen as largely but (because of the unique burdens transitional societies face) not completely reducible to a particular moment within general social justice debates.
10. The importance of this approach is evident in a number of notable works, including Herman 1997, Scarry 1987, Summerfield 1995, and Orr 2000.
11. The state may, for example, claim that certain infrastructural improvements such as repairing roads or building schools in historically poor areas that experienced violence constitute reparations, and many inhabitants would certainly welcome these developments. But urban, middle-class victims will already enjoy access to roads, sanitation, education, and a number of other “benefits” that they see as the entitlements of citizenship. Indeed, for them, material aid should focus more on psychological support. Are the state's economic development efforts, then, really reparations or simply part of citizen rights relabeled through the discourse of victim recognition? See Roht-Arriaza 2004 (189).
12. The goal here is not, however, to offer a programmatic menu of reforms or required policy initiatives. The interested reader should consult the overview in the 2006 World Bank report by Samuels.
13. It includes more than this, of course. In additional to criminal law, reform initiatives often tackle commercial law (particularly because economic and political corruption often go hand in hand) and broader constitutional issues, insofar as they concern core human rights protections and the division of power among government branches. See, for example, Domingo and Sider 2001, Menéndez-Carrión and Joignant 1999, and Lawyers Committee for Human Rights 2002.
14. For a broader account, see Sen 1999.
15. Also see Laclau 1996 and 1990 and Lefort 1986 (307–319).
16. Also see Manin 1987 (338–345) and Nino 1996 (67–106).
17. I realize that much legal theory equates the rule of law in transitional settings with prosecutions. Since here the specific issue of prosecutions is a few degrees separated from the principle of non-violence and respect for law in question, this discussion is better left to the section on accountability.
Chapter 3
1. To be clear, I mean political culture in the sense of the broad attitudes and values that most of the population has toward the political system (democratic, authoritarian, and so on). See Diamond 1995.
2. Robert Post (1993, 654) has argued that the deliberative model overemphasizes unfettered deliberation at the expense of basic procedures of exchange. This is a rather unfair characterization, and in order to avoid facing the same accusation, I underscore the importance of having some basic ground rules for deliberation as the sine qua non of discussion.
3. In discussing the usefulness of deliberation as a regulative ideal, James Johnson (1998, 161–184) has argued that proponents of deliberative politics underplay the extent to which political actors seek to challenge one another not at the level of reasons, but rather at an existential level. While this may be true, and it is certainly more pronounced in transitional settings, Johnson underplays the point made by deliberative theorists, which is normative (as in a prescriptive principle) and not necessarily descriptive.
4. This kind of narrative of rebirth was common in both South Africa, where black leaders were unwilling to delve too deeply into black-on-black political violence during the apartheid regime, and France, where after World War II Charles de Gaulle's government effectively redrew the extent of fascist collaboration to include only a few high-level members of the Vichy regime. See Golsan 2000 and Paris 2001 (74–121).
5. See Hartman 1994 (6). National memory is a fickle thing, and debates around the Berlin Holocaust memorial show that even its greatest advocates can remain insensitive to the present even as they genuflect over past crimes. A memorial always risks serving the interests of the offending group more than those of victims, for it may speak directly to a shallow sense of guilt that remains narcissistic and indifferent—whether deliberate or not—to survivors or their claims to recognition. An anamnestic culture, one that remembers rather than forgets the past, is obligated to reflect not only on its history but also on the meaning of solidarity in the present, lest it simply reproduce the separation and estrangement of victims through a self-absorbed commemoration of its own culpability. See Moses 2007 (263–284).
6. Roy Brooks (1999, 3) has referred to this as “the age of apologies.” Also see N. Smith 2008. On transnational apologies, see Gibney and Roxstrom 2001. On historical injustices, see Barkan 2000.
7. Undoubtedly, there is no historically uniform Christian understanding of the relationship between apology and forgiveness, especially since the Reformation. Nevertheless, the basic understanding is similar among the major divisions. See Albrecht Ristchl's important (1900) three-volume work, The Christian Doctrine of Justification and Reconciliation, especially volume 3. Also see Mackintosh 1927 and Lehman 1986 (233). Forgiveness as teshuvah (“return”) has a long pedigree in Judaism as well. See Dorff 2001.
8. Golding discusses how making moral amends speaks directly to the resentment held by the victim: “One of the main functions of other-oriented regret, in the interpersonal situation, is the negation of the justifiability of the injured party's resentment” (1984–1985, 133). Also see Govier and Verwoerd 2002 (69–70).
9. This concern was raised when then-President of Argentina Nestor Kirchner apologized for disappearances and torture during the Dirty War, and several victims’ groups refused to accept the apology on the grounds that to do so would constitute forgiveness and would thus result in a loss of public and official attention to the era of military rule.
10. I thank J. Donald Moon for raising this important point. Also see Buruma 1999 (4–9).
Chapter 4
1. On East Timor, see UN Transitional Administration in East Timor 2000. On Sierra Leone, see the Special Court for Sierra Leone Web site at http://www.sc-sl.org. On Kosovo, see UN Interim Administration Mission in Kosovo 2001. On Bosnia and Herzegovina, see The Courts of Bosnia and Herzegovina on the Bosnia and Herzegovina Web site at http://www.sudbih.gov.ba/?jezik=e. On Cambodia, see Task Force for Cooperation with Foreign Legal Experts for the Preparation of the Proceedings for the Trial of Senior Khmer Rouge Leaders on the Cambodia Web site at http://www.cambodia.gov.kh/krt/english/ and Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea on the Cambodia Web site at http://www.pict-pcti.org/courts/pdf/Cambodia/Cambodia_052203.pdf. On Iraq, see Supreme Iraqi Criminal Tribunal statute on the Iraq Web site at http://www.ictj.org/static/MENA/Iraq/iraq.statute.engtrans.pdf; see also Rassi 2006–2007, 219–235). All Web sites accessed September 18, 2008.
2. Note that this formulation is not meant to defend a positivist notion of law, where any determination of what is just is achieved through looking at extant law. An adequate response to a violation, as discussed in Chapter 2, must be a just response, and morality, and not merely positive law, should inform the relationship between crime and punishment. While the normative status of accountability was raised in Chapter 2, it bears repeating: Punishment is intimately tied to the respect and autonomy of the victim, for it signals that a violation of such respect and autonomy is a moral wrong and should be addressed accordingly.
3. Arendt takes this position to the extreme, arguing for a strong division between legal and extralegal issues. While I sympathize with this to an extent, I take exception to her strong formulation. She writes, “The purpose of a trial is to render justice and nothing else; even the noblest of ulterior purposes—the making of a record of Hitler's regime which would withstand the test of history—can only detract from the law's main business: to weigh the charges against the accused, to render judgment, and to mete out due punishment” (1963, 233).
4. But see the decisions in Prosecutor v. Krsti 2004 and Prosecutor v. Blaški
2004. For a strong critique of these broader understandings of legal culpability, see Nersessian 2001–2002.
5. Some of the related technical problems are discussed in Dipardo 2008 and Bassin 2006.
6. Specifically, they had to show that their crimes were committed for “political” reasons, not for personal gain or from personal malice. Establishing motive proved quite difficult in some cases. See the excellent 2007 book by Du Bois-Pedain.
7. The best discussions of truth commissions can be found in Mark Freeman 2006 and Hayner 2001.
8. This can occur even when a report does not completely detail a perpetrator's actions. Adramatic instance is found in the South African Truth and Reconciliation Commission's findings on former president F. W. de Klerk. By means of a last-minute court injunction, he successfully stopped the commission from publishing its findings on him. The final report includes a section devoted to de Klerk with the entire text blacked out. See South African Truth and Reconciliation Commission 1995 (vol. 5, ch. 6, sec. 104).
9. See, for example, Humphrey 2002.
10. These issues deal with the effectiveness of restitution. Pablo de Greiff (2006) has highlighted a second set of normative issues that consists in how to measure harm when dealing with individuals: How is compensation assessed for the loss of limbs or mental and emotional harms? Should reparations be highly individualized or part of a “package” (which minimizes administrative costs)? What if the same harm to different people has different effects? Should recompense be tailored accordingly? These complex questions have both practical and moral consequences.
11. Precisely how long is an issue for case study, and it cannot be ascertained a priori. In part, it concerns the degree to which the state has succeeded in convincing the population as a whole that it is institutionalized and permanent and thus not likely to disappear anytime soon.
12. Victims may also turn to foreign national courts to seek redress. The 1992 U.S. Torture Victim Protection Act has served as a vehicle to prosecute foreigners domestically for violations of “the law of nations,” and this manner of tort redress is gaining popularity as universal jurisdiction becomes more widely accepted in national jurisprudence. Criminal trials in foreign courts are also gaining acceptance, even if the support is far from firm; Belgium sentenced four Rwandans (including two nuns) for their role in genocidal killings, though its broader “universal jurisdiction” legislation was significantly curtailed as a result of U.S. pressure. And the impact of international trials (particularly tortcases) on domestic politics is uneven; in some cases, such victories have had little impact domestically (Macedo 2006).
Chapter 5
1. David Crocker (1999, 374–401) has presented a somewhat similar triptych of civil society in his work, distinguishing between “anti-government,” “associational,” and “deliberative.” Since it is more relevant to well-established democracies, I do not discuss the most important American contribution to the civil society literature, Robert Putnam's neo-Tocquevillean “associational” model (see Putnam 1995 and Edwards and Foley 2001 [1–16]).
2. Indeed, deliberation and engagement may promote social learning of this sort. See Volkhart 2001 and Vergara 1994.
3. Obviously, everyone who suffered a human rights violation is a member of the group “everyone who was violated.” And this may become a politically salient group if its members, or some of them, organize around that shared experience. But at this point, I am simply discussing people who were in a politically or socially recognized group before the violations occurred and where that group was targeted as such.
4. See the Web site of the Coordinadora Nacional de Derechos Humanos (2009) at http://www.dhperu.org/Index.html.
5. In Peru, the ombudsperson's Office of Human Rights also plays an important consultative role in restructuring the judiciary.
6. Their work is available on the Campaign for Good Governance, Sierra Leone Web site at http://www.slcgg.org/. Also see Baker 2005.
Chapter 6
1. I spoke to survivors and others both in Chile and in Bosnia and Herzegovina about the violence their societies experienced. In Chile, I met with not only individuals but also members of a number of groups, including CODEPU, Comité ProPaz, Agrupación de Familiares Detenidos Desaparecidos, FASIC, and the Fundación Jamie Guzman. In Bosnia, I met with individuals who were unaffiliated with other groups. These conversations are not meant to reflect the whole range of responses or reactions to past experiences, but they do reveal various attitudes of victims and others. In the pages that follow, I draw on a few of these conversations to elucidate my points: In Chile, I conducted interviews with Cristina H. (July 24, 2000), Maria Helena C. (July 15, 2000), Juan Carlos L. (August 17, 2000), and Marisela P. (August 3, 2000). In Bosnia, I conducted interviews with Mahir P. (July 6, 2007), Suleyman L. (July 6, 2007), Petar L. (July 5, 2007), and Jasmina I. (July 7, 2007).
2. Margaret Walker similarly states, “To coerce in any way a person already harmed or disrespected by a wrong into relinquishing her own need to grieve, reproach, and make demands may itself be harmful or disrespectful” (2006, 179).
3. Also see Murphy and Hampton 1988 (18) and Hill 1973.
4. Charles K. Barton takes this position further: The pleasure that victims receive from the suffering of the perpetrator is “not morally objectionable”; rather, it “is most plausibly identified as satisfaction in justice being done” (1999, 13).
5. Indeed, the literature espousing this approach is rather large. The classical formulation is given by Bishop Joseph Butler (1971 [1726]), especially Sermon VIII, “Upon Resentment,” and Sermon IX, “Upon Forgiveness of Injuries.” For important modern statements, see Enright and The Human Development Study Group 1994, Downie 1965, Holmgren 1993, Horsbrugh 1974, Lewis 1980, and Richards 1988.
6. It is worth distinguishing this approach from another common one. Some liberals, such as Bruce Ackerman (1992), recommend that we avoid dealing with interpersonal relations after mass violence. They argue that the better alternative to forgiveness (or even accountability) is social forgetting. This strategy may seem superficially similar to what I argue; however, my approach emphasizes moral recognition, engagement with the past, and a commitment to accountability. Without these, such tolerance is morally impoverished. Their approach would bury likely feelings of mistrust and lingering resentment under the rubric of “tolerance.”
7. Such a gap is often evident in the personal memoirs of survivors; they struggle to explain experiences to readers who may have had no direct connection to the violence. See Delbo 1968 and Langer 1991.
8. Compare, for example, “Part II: Stages of Recovery” in Herman 1997 with Scarry 1985 (especially chap. 3, “Pain and Imagining”).