Can we all get along? – Rodney King 1 The 2010 special issue of IJTJ , titled ‘Transitional Justice on Trial: Evaluating Its Impact,’ reflected our wish to explore the current status of transitional justice mechanisms in terms of their effectiveness. In the five years since the journal’s founding, we have tried to present a range of scholarly and field-based articles that examine the state of an evolving endeavor, transitional justice. The special issue was, in a sense, an opportunity to look closely at where we have come over the past two decades. I was pleased by the articles we published but somewhat concerned that this topic had received the least submissions of any of the special issues. While this can be explained in a variety of ways, I am going to assume, based on a review of other relevant publications across disciplines, that this gap is a reflection of the fact that, as a field, we have not been successful at promoting a research agenda that values the study of effectiveness. Anecdotes abound, assumptions remain untouched by lack of evidence and many hang on to the notion that ‘it is too soon’ to look at what transitional justice actually accomplishes in the social reconstruction of a country. Since the early 1990s, well over a billion dollars has been spent on mechanisms of transitional justice, such as truth commissions, trials and memorials. The South African Truth and Reconciliation Commission (TRC) cost about $52 million dollars; the International Criminal Tribunal for the former Yugoslavia (ICTY) costs $177 million a year; the International Criminal Tribunal for Rwanda (ICTR) spent $1 billion from 1995 to 2007; and the Special Court for Sierra Leone had spent $75 million by 2005. Journalist Helena Cobban suggests that international courts have ‘squandered billions of dollars’ and that ‘it’s time to abandon the false hope of international justice.’ 2 Whether these judicial mechanisms are effective depends on how the goals are crafted and whether we are satisfied that punishing evildoers is itself sufficient justification. However, over the last 20 years, these goals have expanded to encompass the elusive ideas of ‘reconciliation’ and ‘closure’ in order to move countries toward a broader vision of reconstituted societies based upon democratic principles, rule of law and observance of human rights norms. Why does the international community expect states that have recently emerged from a period of mass violence characterized by human rights atrocities such as mass rape, kidnapping, disappearances, mutilation and wholesale destruction to achieve reconciliation and closure within the first years after the violence has ended? Are these terms even meaningful in a consideration of rebuilding the social infrastructure of violated communities? The index of historian Eric Foner’s 1988 book Reconstruction: America’s Unfinished Revolution , 3 a trenchant exploration of the 14 years following Abraham Lincoln’s signing of the Emancipation Proclamation, does not contain an entry for ‘reconciliation,’ nor do we find one for ‘closure.’ The book’s subtitle suggests the author’s conclusion that almost 150 years after the Civil War, America still has not completed the task of building a more just society. If America still has unfinished business after more than a century, is it not hubris to think that societies emerging from unspeakable atrocities can achieve ‘reconciliation’ in just a few years after peace has been achieved? Recent events in Spain – some 70 years after the Spanish Civil War – where there have been exhumations of mass graves and reparations approved for victims and their families, suggest that memory persists. Despite the trappings of a successful democracy, painful histories endure and will seek resolution in their own time. Even in South Africa, where much effort and money went into the innovative truth commission process, there is a question of how far the country has moved toward reconciliation. Resentment about economic disparity continues; violence persists; and the vastly different worlds of Whites, Blacks, Asians and Coloureds remain. And yet, much has changed: there is a rising Black middle class, and increasingly integrated schools and communities. Is coexistence enough for now and for the foreseeable future? Beginning in the 1990s with the outbreak of mass violence in the Balkans, the Rwandan genocide, the violence of Timor-Leste and the many other intrastate wars that have characterized the past 30 years, diplomats, international lawyers and politicians have echoed the refrain that mechanisms must be put into place not only to secure peace but also to promote societal change. While truth commissions or commissions of inquiry had been established in the past, the South African TRC, with its emphasis on the almost spiritual concept of reconciliation, introduced a new element into state responses to past atrocity. The TRC spawned an industry of reconciliation advocates and practitioners, with broad presumptions made about the effectiveness of such measures. Unfortunately, these ‘articles of faith,’ as human rights scholar and Canadian politician Michael Ignatieff labeled them, suggest the possibility of outcomes that could lead only to inflated expectations and ultimate disappointment on the part of those who suffered. 4 In a sense, these responses to mass violence reflect a reaction of the international community to its sense of powerlessness in the face of ethnic cleansing, genocide and apartheid. On the one hand, the development of an international response to serious violations of international humanitarian law through the establishment of the ICTY, the ICTR and ultimately the International Criminal Court (ICC) have led to the universal application of a system of retributive justice. This is lauded by human rights advocates and those with a firm belief in the rightness of justice and its benefits for victims. On the other hand, critiques of so-called western justice have questioned the universality of these approaches in the face of different traditions and rituals that may reflect local approaches to accountability and reintegration of those who have committed atrocities. 5 The astounding growth in writing, both academic and popular, about the elements of what is now called transitional justice has spurred debates about justice versus peace, the primacy of international ownership over the dispensation of justice, questions about what constitutes justice, universalism versus local responses to atrocity, the rights of victims, the rights of perpetrators and multiple claims about which factors will facilitate the social reconstruction of fragmented states. In this editorial, I suggest that we have focused entirely too much on the notions of closure and reconciliation. Member states of the UN and the European Union have expended considerable amounts of money and human resources on chasing a will-o’-the-wisp, adopting buzzwords that have no consistent definition or conceptual clarity and promoting mechanisms to achieve these obscure outcomes with little evidence that they will make a difference. Reconciliation is like the old saw about pornography – we know it when we see it. But do we all see the same thing, and what exactly are we striving to achieve? Is it peace, the end of violence; is it contented individuals and families; is it communities where it is safe to walk the streets, to shop, to go to the mosque or church or synagogue, where women do not fear rape and where men and women feel no pressure to take up arms; is it economic opportunity, education for the children and dignity in old age? All of these utopian aspirations are laudable and meaningful, but which of these mean reconciliation and how achievable are these goals within a reasonable time span? Of course, safety and security are critical outcomes, but do they constitute reconciliation and does the terminology matter to those whose lives have been shattered? Perhaps an even more critical question is whether violence is over when violence is over or does it simply change form, become more subtle but insidiously destructive in ways that reflect the power differentials that permeate unequal societies? Consider the concept of closure. The word has become ubiquitous in the western world. Attorneys use the term frequently as verdicts are handed down (‘at last, my clients will get closure’) and prosecutors use it at executions (families are invited to witness the execution to ‘achieve closure’). Closure is popularly described as a goal of psychosocial treatments for trauma exposure (‘revealing is healing’). The term is used by diplomats and lawyers in the setting up of transitional justice mechanisms so that states can ‘come to terms with the past’ or ‘settle accounts.’ By this, they mean that states will achieve closure on reckoning with the pain of prior oppression or identity-based wars. We hear the term used after funerals when the deceased has suffered for a long time and the family can now reach closure. Journalists, particularly broadcast journalists, use the term loosely, making assumptions about what it means and holding out the promise of a happy ending. Is any of this realistic? Is it so simple to eradicate emotional pain? The idea of closure first appeared in the 1920s as part of a Gestalt approach to perceptual organization. A natural human tendency is to close incomplete diagrams, such as a partially open circle, in order to gain a gestalt , or a full picture. Since then, the term has evolved. It is used now in a variety of ways that suggest a psychological state where all emotional dissonance is resolved. There is no real evidence that memories are ever permanently lost except by irreversible organic brain damage. As eminent neuroscientist and Nobel Prize winner Eric Kandel points out, the laying down of memories results in actual physical changes in the brain. 6 If that is so, then it is quite likely that appropriate cues can trigger a resurgence of memories. The question then becomes how much of the original feelings and emotions recur and what determines how the emotions are laid down at the time of the original event. Skeptics may suggest that tying the concept of closure to theories of psychology that have emerged out of psychotherapy offers insufficient evidence for this being a valid phenomenon. The concept itself is open to broad definitions. For example, in a 2004 paper following the 9/11 attacks, social psychologists Linda Skitka, Christopher Bauman and Elizabeth Mullen wrote: Closure is a psychological concept that is frequently mentioned as a desired end-state following any variety of psychological traumas and refers to a state of psychological resolution that is achieved when people feel they can effectively move beyond the trauma and attend to other problems and concerns. 7 While the goal of closure may be unrealistic, what is apparent is that many people, especially in western societies, have a great need to reach a conclusion, to resolve a problem, to turn the page. Psychologists Donna Webster and Arie Kruglanski have developed a scale that measures need for closure (NFC). 8 They define this as the desire for firm action and the rejection of ambiguity. This urge may bias decision making, close options and produce negative feelings if it is not satisfied. Thus, there are two competing tendencies: a sense of urgency (‘get it done’) and the desire for permanency (freeze what is known and resist reopening the process). The NFC likely underlies policy makers’ and diplomats’ propensity to push for a rapid response to violence. This often results in the initiation of transitional justice mechanisms as quickly as possible after the fighting has ended in the vain hope of achieving clarity and closing the books on the often horrendous events that have overtaken a country. Unfortunately, following a toolkit of responses may be out of synch with what people in a particular context desire and may result in painful debate about whose views have priority. For example, in northern Uganda, the ICC indictments met resistance from religious leaders, who preferred to use traditional methods of dispute resolution in the hope of bringing peace to the war-torn region. This in turn raises questions about who speaks for survivors and who the victims are. Policy makers’ need for closure short-circuits such questions in favor of lumping all victims together, assuming an understanding of what victims need and ignoring the sociopolitical context, history and culture of those affected by violence. At its worst, this emphasis on a debatable concept may result in the silencing of the most vulnerable. A sentiment oft-times expressed in relation to trials and truth commissions is that justice is for the victims, so that they will be acknowledged, their dignity will be restored and they will secure closure. While there is no doubt that many witnesses find their experience of giving testimony satisfying, there are also stories of disappointment in respect to both truth commissions and trials. These mechanisms undoubtedly have important benefits, but closure likely is not one of them. While some victims may fantasize that transitional justice mechanisms will bring resolution to the acute pain of loss, the ideal of ‘closure’ appears to exist primarily in the minds of many who advocate for the mechanisms. If the concept of closure is murky, reconciliation is an even more questionable goal. In 2006, the International Institute for Democracy and Electoral Assistance issued a report from its Reconciliation Expert Network Meeting. 9 With all due respect, surprising here is the notion that any experts exist. Less facetiously, the problem lies in the multiple meanings of an imprecise term. Virtually every academic paper on the subject begins with this problem of imprecision and definition. Are we talking about one-to-one (interpersonal) reconciliation between two individuals? Is it an individual process whereby a person begins to accept the reality of tragic events or the consequences of an action? Does reconciliation occur between members of a community who were formerly on opposing sides of a conflict? Is reconciliation some event that takes place or part of a long-term process? Is it between a state and its people or a community and the state? Does reconciliation involve restorative justice or forgiveness? Does it require apologies or reparations? Finally, reconciliation is touted as the process that will lead to ‘healing.’ The evocation of a medical metaphor for social suffering is fraught with problems. What is the wound, and what is the treatment or cure? Are there long-term disabilities? Who are the practitioners who can heal? What exactly are we ‘healing’? And who is being healed – the individual, the family, the community or the state? How will we know when healing is complete? How do we think about prevention or promise ‘never again’ when we do not really know how to prevent (or choose to ignore) the forces that lead up to mass violence? Iraq represents a concrete example of how difficult it is to use the idea of reconciliation as a goal. In a 2004 study conducted by the Human Rights Center at the University of and the International Center for individuals from all ethnic in the country expressed their about The events that place the past years in our and we will it from one to this people how to and to so we need to and the this If has I will not of a who has the people must be I the people to them. is there and to be There is no to on to the of The of on what constitutes reconciliation the that we are for a concept that about and reconciliation and and social reconciliation. scholar elements of a process of reconciliation, such as the idea of and coexistence that of and to in a paper for International and the African Justice five possible of and building and and of justice. that reconciliation between does not on reconciliation between a to think about for 14 reconciliation in the where justice and peace As we explore the of these we are with the that we are the of the men and the – has a there is a but it our And what do we policy whose is to of The of reconciliation the and justice, with an emphasis on the critical of of on reconciliation, I suggest we the idea that, as a violence may be that more than that is years, The is a the ultimate we can reach for but not quite after the a appeared on the of and the of and the a of people what they had to across ethnic the politicians was the by the to a between and in and at the to of the had and had come the at least with respect to their own but still with the of the they to with their scholar the as a for and However, the initiation of that if people are to their own their desire for be used as a for as long as it is and of the of the idea that the most important to peace be the possibility of former on the same the be going for a together, and to lead to a A Rwandan genocide has I this word I with people, even if they are in If a person to my I will after has the members of my family that The international community to its goals and that these over a long period of time and are by I suggest that we need to look more at what truth commissions and actually and for the and goals they may to the multiple ways in which violence communities – violence toward the – far beyond what our current views of transitional justice and ‘reconciliation’ We may need to accept that coexistence is an first and that the of transitional justice, development and the of just and societies is one The use of buzzwords like reconciliation, and reintegration of and the of that the and that are called into when a social reconstruction be While they may become for action their may lead down our and money on and may be and reflect our need for but ultimately this of offers little into the rebuilding of While these questions I also am of how far we have come in this international of transitional justice. The and debate practitioners and of in which I have been to has been and Since the of this we have tried to articles that the I have here – the of and the of what constitutes transitional justice. We have tried to present a not from the that in effective responses to and mass violence. as I out, much to be in this International policy are on a we have the we just need to use them. 20 Unfortunately, we have to what they can do and their I suggest that those in this must from our If the is retributive justice, then If it is to societies, out what this actually it and its effectiveness. I that it is to the assumptions about reconciliation, justice and what and on the the that to a approach to social I that to our across the as a I have much and feel to the many with I have over these The is a and of many It is my to the over to course, with with the IJTJ – and the as well as the – has been a I also like to the Human Rights the for the of and Reconciliation in South and University for their and Finally, I urge all to for we do this – those whose lives have been by and other human rights atrocities.
No takes yet. Share an insight, caveat, or question.
Harvey M. Weinstein (2011) studied this question.