2

Repair

No one is immune from wanting a master narrative, from wanting to be comforted by coherence.

—Teresa Godwin Phelps, Shattered Voices

Many things need repair. We know that economies, structures of governance, communities, civil relationships, and individual persons may need repair after oppression or violence. Those whose lives have been lived at a distance from the shadow of those misfortunes may neglect to note that their own selves may need repair. I don’t mean only that ethical loneliness happens everywhere, even in settings rife with affluence and privilege. Of course we should pay attention to practices that isolate and dehumanize persons wherever they occur. But there is another site of repair: the attitudes, ideas about responsibility, and the sense of self of the person who does not feel implicated in the breadth and depth of this world’s widespread uses of oppression, violence, and social isolation to destroy human beings and the communities where they dwell.

The other chapters of this book draw our attention to ethical loneliness as a widespread problem, show how practices of hearing often fail—even in institutions designed to hear and staffed by persons who want to hear well—and discuss what is at stake in practices of revision and retribution for those who have been harmed and for those who have not. This chapter pauses for a moment in the path of the book’s main argument, to accomplish two things. It explores the possibilities and limitations presented by trials and truth commissions as responses to mass injustice. And it shows why, though trials and truth commissions are forms of response that are worthy of support, it is important not to let the field of response to grave and widespread harm be utterly dominated by them.

Trials and truth commissions are central to most claims about transitional justice and political reconciliation. And so this chapter functions both as necessary background to my larger argument and as delineation of what this book does not set out to accomplish. This book is not about trials and truth commissions. That means, among other things, that thinking about response to violence from the standpoint of ethical loneliness allows us to change the subject. It is important to honor the achievements of the responsive institutions that have been created in the past few decades. But we must focus also on what we don’t know and what these institutions can’t do.

APPROACHING REPAIR

Political reconciliation, political forgiveness, and transitional justice, all of these big ideas are reparative: each in its own way seeks to mend significant harms. Their purposes for doing so may vary—across cultures and institutions and within a single organization. However, whether the aim be justice, a future less rife with conflict, improved personal relationships, political expediency, or any of the many other aspirations that may surface postconflict, the processes all rely on an assumption that repair is possible. The assumption may not hold in all cases.¹

In order to discern whether repair is possible, we need to know what repair is. And, in the wake of oppression and violence inflicted on human beings by other human beings, in order to understand what repair is, we need to recognize what breaks selves and worlds. In turn, in order to comprehend what breaks a self or a world, we ought to know something about what selves and worlds are—how they are formed, what sustains them. Finally, we need to understand how to make judgments about what can be repaired, what should be repaired, what cannot be repaired, and, perhaps, what should be left broken.

In her book Repair: The Impulse to Restore in a Fragile World, Elizabeth Spelman lays out different approaches to repair.² A master mechanic might fix a car by thinking beyond the car’s repair guide, using what she knows about the design and purpose of the machine to get it working again. With that kind of repair, consolation for loss may not be needed, because the car fills its function as well after the fix as it did before. But if that same car were of a rare vintage and in the hands of a fan of its authenticity, the aim of repair might not be simply to get the car running but to keep as closely as possible to the original design—perhaps using only original parts even if those might be difficult to find or less efficient overall. In that case, re-creating authenticity offers consolation for the inevitable change that time brings. It does its best to keep an irretrievable past intact. However, a collector faced with the breakage, or even simply the decay, not of a machine but of a priceless work of art might make different decisions, weighing the pros and cons of both intervention and letting be—after all, any intervention is a form of creativity. One might even call it authorship. An expert in art restoration thus works to avoid leaving signs of her own work and makes judgments about what kinds of change can be responsibly introduced. She might even decide to let time’s effect on an artwork stand. In that case, repair’s consolation may be that not every change that time brings about is bad, or that damages can be mitigated if not fully erased. For Spelman, what all these possible orientations toward repair elucidate is that repair is not neutral. It is an intervention preceded by decisions made about value. About such decisions people are likely to disagree. And so, when we consider repairing human relationships and human damages, it is prudent to proceed thoughtfully and carefully, working in tandem with all stakeholders, because, as Spelman reminds us, “just because something is broken or damaged doesn’t mean it should be fixed or that anyone or everyone is entitled to fix it.”³

I sometimes suspect that some portion of the tremendous weight of hope tethered to forgiveness and reconciliation in the international justice community is symptomatic of a lack of reflection on, for instance, what people are being asked to forgive. I don’t intend that as an accusation against anyone who writes about forgiveness but rather as a reminder that forgiveness, for all of us but perhaps especially for survivors of grave harm, may be easier said than done. Forgiveness is a tremendous gift and opportunity for any person, community, or polity that can manage it. But those who focus solely on that goal may neglect to dwell long enough on other questions, such as, What other old or new ways are there of redressing harm? What set of conditions would make forgiveness a goal worth reaching, or capable of being sustained (and what conditions render it less meaningful)? When might resentment and resistance be vital political expressions that should be heard alongside the discourse of repair? Might resentment and other negative affects even be, on occasion, more restorative than forgiveness? While these questions (to which we return in chapter 4) clearly evince a skepticism about some trends in the theory and practice of political reconciliation and transitional justice, my larger argument simultaneously makes a claim on behalf of the goals of those fields. We do owe something to the human beings whose selves, lives, and worlds have been torn apart by human violence and indifference. By “we” I mean the diffuse and large but not universal “we” of those who care about justice. It is important to think about what trials, truth commissions, and like institutional responses can and cannot achieve for recovering persons, communities, and nations.

JUSTICE AND TIME

Embedded in the argument about what best gets the work of transitional justice or political reconciliation done is a disagreement about time. On the one hand, the aim of a just proceeding is retributive, aimed at the past. For the retributive approach, past harms must be recognized, and those guilty of them punished or censured in some way to do justice to past harms, rebalance the scales. Retribution grants just deserts to those who have failed to live up to minimal legal standards. Proponents of that idea insist that it is the only way to end impunity for those who abuse the human rights of others. They often attach to that claim a hope that retributive proceedings will offer healing, catharsis, or closure for victims.

But there is also the other hand, reaching toward the future with arguments of restorative justice. For that hand, the aim is to rebuild community or to build it anew where it never before existed. That might mean replacing retributive legal proceedings with a different kind of institution, such as a truth commission or a set of reparative measures that may even include amnesty for some perpetrators. The goal is to begin to create a world that all parties might hold in common. It is widely believed that some combination of truth and forgiveness contributes to that goal.

Roughly put, retribution is about the past; restorative approaches focus on the present and future. Of course both approaches have a more complicated relationship to temporality than that—restoration does deal with a past as much as retribution seeks to create a certain kind of present moment and future. In the lived world where these approaches get used, the categories often blur and then combine themselves with theories of deterrence and rehabilitation. So, even though trials are usually thought to be the best sites for giving alleged criminals what they deserve, some argue that truth commissions that name names also mete out “just deserts” even if amnesty is awarded, since offenders will henceforth have to live in a society where everyone knows what they did. That is a different way to approach retribution and the problem of impunity. If everyone knows you tortured and murdered people, your daily life may not leave you feeling like you “got away” with something even if political amnesty keeps you out of prison. In turn, though truth commissions are thought to be the more restorative approach, many scholars and activists argue that trials do as good or better a job as do truth proceedings at building or rebuilding a shared world. The idea here is that court cases help to bring into being a society governed by the rule of law where all are treated with equal respect, and also help to establish the truth of what happened. “Retributive” trials can be restorative and “restorative” truth commissions can mete out retribution. The categories blur. All approaches are imperfect. And every nation or community struggling to move forward after violence or historic injustice will have a different set of limitations and possibilities to work with. And yet, despite the overlap, these forms are not the same.

TRIALS

When they work, criminal trials help to establish the rule of law, demonstrate to those who were victimized that crimes will not go unpunished, and begin to set up a societal expectation that justice is both possible and owned equally by all. Juan E. Méndez argues that after a long period of violence and inequality trials are preferable to truth commissions because the strict processes for obtaining legal truth produce a trustworthy record: if courts can show that irrefutable evidence was obtained under fair conditions, then others can’t dispute the truth of the findings as subjective. That will matter in a setting where some portion of the injustice comes from people denying truths or subscribing to conflicting accounts of what happened.⁴ Méndez suggests that wherever a truth proceeding replaces criminal prosecution, there is danger that it will be seen as a disguise for impunity—especially where amnesty is offered to perpetrators. Letting bygones be bygones is morally wrong, he argues, “because it fails to recognize the worth and dignity of each victim. It is also politically wrong because it sets the new political order on the weak foundation of privilege and the denial of the rule of law.”⁵

He is not alone in thinking this. Muhamed Sacirbey, former Bosnian foreign minister and ambassador to the United Nations, argues, “War and diplomacy have been the instruments defining our regional and global relations, and more often than not leaving much wanting. Increasingly though, it is becoming recognized that no conflict is truly dowsed and no peace and reconciliation is lasting without the rule of law and at least the impression that justice prevails.”⁶ Sacirbey voices a common belief that justice must be seen to be done and attaches it to a hope that law will accomplish that. Along those lines, a group of psychiatrists studying forgiveness in South Africa found that, though forgiving attitudes correlated with fewer symptoms of PTSD (post-traumatic stress disorder) and depression, “the perceived absence of justice (i.e., punishment of perpetrators and compensation of survivors) in the TRC process, about which many have protested, may have been a barrier to recovery. If justice is done, and seen to be done, psychological healing may be facilitated.”⁷ These researchers suggest that truth without justice does not achieve a full recovery. In turn, in Argentina, legal punishment of state terrorism seems to have solidified for both elites and survivors of political violence that henceforth all would be equal before the law.⁸ Douglas Johnson, executive director of the Center for Victims of Torture, observes that the trials that did succeed in being held in Argentina had a “very salutary effect for victims.”⁹ Jamie O’Connell, citing a conversation with Johnson, points out that the trials “documented the extent of the dictatorship’s human rights violations and their impact on victims, and firmly placed the blame on the military’s top commanders,” adding that such awareness might not have come about if the trials had not happened.¹⁰ For some nations and individuals, an end to impunity accomplished by legal trials can help begin to free the present and future from determination by past harms. It can begin the work of repair.

Whether or not a trial will “work” will depend on social context as well as institutional capabilities. That is why Mariane Ferme argues that scholars need to stop arguing about whether tribunals are “a good idea” and instead ask “what difference they make.”¹¹ That will mean understanding local context and listening well to those most impacted by the abuses. If there aren’t enough judges or lawyers who can do the work, as was the case in Rwanda after the genocide, the system won’t function.¹² If the judges and lawyers who are available are known to have been involved with a past criminal regime, people will not trust in the fairness of the proceedings and may even fear participating in them.¹³ If social upheaval has not traditionally been handled in legal proceedings, legal judgments may not succeed in renewing the sense of community that was lost.¹⁴ If courts use laws or procedures that are unfamiliar to the communities most affected by the violence, the people may not see justice being done.¹⁵

For instance, when the International Criminal Tribunal for the former Yugoslavia (ICTY) started accepting plea bargains, the confessions that followed helped establish the truth of crimes that might otherwise have remained hidden.¹⁶ When Serbs who planned or participated in massacres confessed to what happened, that actually helped many in Serbia and Croatia accept the tribunal as unbiased rather than dismissing it as a witch hunt. That made “the continuing denials and revisionism about the war more difficult and the tribunal more acceptable.”¹⁷ But plea bargaining is not native to the judicial systems of the former Yugoslavia and so is often misunderstood or rejected as unfair by victims who hear about the trials’ outcomes. Activist Lepa Mladjenovic reported that “the polls say that most of the population (93 percent) do not know that Plavšić was responsible for ethnic cleansing in 32 communities in Bosnia, for which she pleaded guilty. But they know that there is a sauna in her prison.”¹⁸ Rather than being happy about the confessions and the closing of cases, many survivors were distressed at the lighter sentences handed out. There were also concerns for fairness: “Relatives of wartime prison camp victims were furious when a guard who pleaded guilty to killing five inmates was sentenced to eight years, whereas lower-level guards who went to trial got twenty.”¹⁹ Serge Brammertz, prosecutor at the ICTY, related on a conference panel that when the charges in the case against Ratko Mladić were reduced to speed the case along, that decision had to be explained to victims’ groups, who weren’t happy about it—after all, in a domestic court system every murder is prosecuted.²⁰ (In a domestic system each case is considered separately—even if not prosecuted—while in international proceedings a reduction of charges in cases of mass murder may leave large numbers of unjust deaths unaddressed.) So even if plea bargaining helped some Serbs accept the ICTY as legitimate, it disappointed some Bosnian Muslims who wanted more consistent outcomes from the trials. And the continuing legacy of distrust of the ICTY in Serbia speaks to how even truths arrived at using legal procedures may fail to convince a broader audience.

A criminal trial is focused mainly on perpetrators; in a court of law victims’ stories matter only if they help to establish the narrow facts of a case as it is perceived by a prosecutor or defense attorney. Adversarial processes may fail to respect the experience of victims or even reawaken their trauma, leaving them worse off than before in terms of their feelings of recovery and of support from the surrounding society. Even processes that are less adversarial, such as inquisitorial systems that allow victims to play a role as parties civiles, or victim participants, may be hard-pressed to do justice to the distinction between wrongs inflicted and harms undergone. When we punish perpetrators we mete out judgment about wrongs inflicted, and in those cases victims matter only if in their capacity as witnesses they help build a case. But punishing a perpetrator does not rebuild the selves and worlds destroyed by human rights abuses, and so the retributive approach may leave entire communities’ experiences of harm unaddressed.

The disjunction between wrongs inflicted and harms undergone finds its way into criminal trials at multiple sites. The first is in the area of numbers. In any legal proceeding after long-standing oppression or massive crime, trials will only ever cover a very limited number of individuals, most of whom will be part of a much larger (and often complex) story of wrongdoing and victimization. Teresa Godwin Phelps describes the problem:

In situations faced by transitional democracies after massive oppression, many perpetrators and victims will never enter a courtroom, will never have an opportunity to tell or hear the truth. While a trial can name some specific conduct as wrong and to some extent educate the citizenry about the nature and extent of prior wrongdoing, it is focused in such a way so that the individual wrongdoing may not be adequately put into the context of the practices and ideologies of the oppressive regime.²¹

We might say that Phelps agrees with Méndez that a trial may, because of its rigorous standards of proof, contribute to decreasing the number of falsehoods that can be believed about past harms. But in doing so, she adds, only a very narrow version of a story will emerge, “starring” only the witnesses called to court and one or a few perpetrators. That story will cover only the range of crimes that count within the court’s jurisdiction and can be proven beyond a reasonable doubt using legal procedures. And it will leave untouched a whole universe of harms that are not legally recognized (or cannot be proven using legal standards and procedures), as well as failing to cover the widespread effects of policies and laws that left people in desperate poverty or otherwise without protection—but that do not count as crimes punishable by law. Rigorous standards of proof cut both ways, and sometimes even what is widely known outside court cannot be conclusively established within its walls.

If ethical loneliness is the outcome not only of being abused but also of not being heard, then criminal trials, with their limited capacity to hear, are not likely to assuage, on their own, the kind of loneliness caused by social abandonment. Still, victims may be helped by successful trials even against perpetrators other than their direct abusers. “Criminal or civil actions against perpetrators whom survivors see as connected or analogous to their tormentor, or as indirectly responsible for their suffering, may also have a psychological impact,” writes O’Connell (while also admitting that the “sparse evidence available on the reactions of survivors to judicial proceedings does not yet permit evaluation” of that hypothesis).²² Where it is impossible to find all responsible, finding some guilty where before all acted with impunity may be tremendously reassuring—even vindicating—to those who have been affected by state violence. Even failed criminal trials may help: James A. Goldston of the Open Society Justice Initiative, writing about the failed domestic trial against General Efraín Ríos Montt in Guatemala, points out that, despite his conviction being overruled on appeal, “the very act of bringing Ríos Montt to trial has already accomplished much: in allowing victims to speak openly about what they suffered, stimulating public debate, and methodically setting forth in a 700-page opinion the extensive record of criminality.”²³ On this reading, a trial may help recovery even when a perpetrator is not convicted.

I have remarked that in criminal trials, only a very few witnesses will ever have their day in court. Jeremy Sarkin, writing about the International Criminal Court (ICC), describes the same problem from the standpoint of offenders: “Even where the ICC has jurisdiction to act it can only do so in a very limited number of cases…. In places where thousands (or hundreds of thousands) of atrocities have occurred and the ICC prosecutes only a few of the most responsible, while nothing happens to the rest of the perpetrators, justice cannot be said to have been done.”²⁴ Kamari Clarke makes a similar point about the first case brought before the ICC: Thomas Lubanga Dyilo (Lubanga) was convicted of enlisting and conscripting child soldiers in a civil conflict in the Democratic Republic of the Congo (DRC). Some say Lubanga is a warlord who used child soldiers to spread terror, murder, rape, and mutilation throughout the Ituri region of northeastern DRC. Others say he is a freedom fighter violently trying to even the scales of extremely unequal access to the country’s mineral wealth. Clarke’s analysis of the case shows how convicting Lubanga under standards of individual criminal responsibility and command responsibility tells one possible story about the conflict in the DRC. But it does not tell the larger story about poverty, a history of European colonization that left behind corruption, elites who hold all the wealth, a majority of the rest of the population living in desperate and unsafe conditions, all of that causing or exacerbating ethnic conflict—and creating conditions where someone like Lubanga could operate successfully. International legalism finds a few warlords or leaders criminally responsible, which helps create and codify a new regime of justice that “concerns itself with some crimes and not others and that celebrates the achievement of punishment and its symbolic potential to deter future crimes rather than addressing some of the contests at the heart of violent struggles.”²⁵ Stephen J. Rapp, head of the Office of Global Criminal Justice in the U.S. State Department and former prosecutor at the Special Court for Sierra Leone (SCSL) and the International Criminal Tribunal for Rwanda (ICTR), makes a similar point when he observes with regard to the DRC that hundreds need to be tried but only six or seven will, which, for him, is a clear indicator that more is needed than legal trials.²⁶ Brenda Hollis, a prosecutor at the SCSL and ICTY, adds, speaking of recovering victims, “these people have so many needs, and a criminal court is one response to one need.”²⁷

Legal trials produce a narrow showing for victims, and also for offenders. When one or five or fifteen politicians, soldiers, or commanders end up in court but thousands return to their homes, justice starts to resemble gambling or scapegoating. No one is going to say that Eugene de Kock, a former South African police colonel, called Prime Evil for his role in a significant amount of killing and torture, should be left unpunished for his crimes—he was denied amnesty, put on trial, and sent to jail. But a number of people who committed crimes as heinous were awarded amnesty through the TRC (Truth and Reconciliation Commission) proceedings.²⁸ If the job of a system of incarceration is to impose retributive punishment, then perhaps it is simply justice that de Kock ended up in prison. But it isn’t the kind of equal justice vanquishing all impunity that we imagine when we think about rule-of-law legal institutions in the abstract. De Kock, like anyone else who moved up the ranks of the police in apartheid South Africa, was acting on orders. The apartheid regime was set up to hide the responsibility of those at the top, leaving people acting on orders to end up in prison or fight for amnesty. Pumla Gobodo-Madikizela, a commissioner on the South African TRC, adds, “It is this component of the crime, the one that resides at the systemic, institutional, and policy levels rather than at a personal level, that is notoriously difficult to substantiate within the strict evidentiary rules of a purely judicial process.”²⁹ So, after massive political violence or long-standing conflict, trials will give voice to some victims, but not many. And they will find guilty some offenders, but not many.

For those reasons Sarkin argues, about trials, that “if no other process occurs in the state, then it is likely that victims will not receive a truthful accounting or other elements such as reparations.”³⁰ At stake here, then, is a definition of meaningful truth. Trials provide what Phelps calls “microscopic truth.” One hopes that the worst of the worst will be caught and tried, “but the guard who raped and murdered someone’s daughter, the low-level functionaries who ambushed and killed a group of peasants, these and many, many others, will never be ‘brought to justice.’ The stories of the harms that befell thousands of people are never heard or acknowledged—never even given a setting in which they might be heard.”³¹ As Sarkin points out, if trials aren’t combined with other, more reparative efforts at the state or community level, most victims will not benefit in meaningful ways from international criminal cases.

Still, even if the numbers don’t add up to a thorough accounting of past harms, trials do begin to demonstrate, not only to the offenders and victims who participate but also to the surrounding society and possibly the larger world, that there are now institutions in place that are ready and able to punish those who grievously abuse the human rights of others. That kind of reversal, where impunity is replaced with accountability, censure, and punishment, may play a powerful role in how people think and feel about possible futures and what the past means in the present moment.³² It is one form of repair.

TRUTH COMMISSIONS

There are as many different kinds of truth commissions as there are truth commissions—some make their proceedings public, some don’t; some are aimed at uncovering truth for the sake of reconciliation, others are aimed squarely at truth for the sake of the historical record or a justice that isn’t entirely reconciliatory; some are state sponsored, some aren’t; some are widely accepted by the public as an important institution, some aren’t; some have a huge impact on public perception of past abuses and some don’t.

Proponents of truth commissions argue that, in a setting where many long-standing harms come not (or not only) from discrete criminal action but the effects of violence, poverty, oppression, or silence, the stories collected by truth commissions can build a more comprehensive narrative of harms. And they can do so even if the kind of evidence needed for legal conviction of perpetrators is lacking, and even if the perpetrators cannot be found. Truth commissions can, in a way, liberate victims from the past by giving them a voice that does not rely on—that is set free from—perpetrators and legal institutions (though truth commissions are themselves often creatures of law). They may, if well designed, shift the site of power to those who before were powerless. Speaking about the South African TRC, Gobodo-Madikizela writes,

The narratives of trauma told by victims and survivors are not simply about facts. They are primarily about the impact of those facts on victims’ lives and about the painful continuities created by the violence in their lives. There is no closure. The lived experience of traumatic memory becomes a touchstone for reality, and it tells us more than facts about how people try to lead a normal life after such a trauma.³³

A legal process will bring together and verify a selection of facts about crimes that were committed. But trials are about who did what illegal thing to whom, and thus many stories simply cannot be told (or heard) in a trial setting. Gobodo-Madikizela suggests that collecting stories not only of harm but also of context, and of the drawn-out effects of violence and unjust systems, may in some settings shed more light on what the problems are and how they might be addressed and redressed than would a legal trial. Spelman concurs, arguing that retributive approaches “fail to locate and properly attend to the multiple ruptures” caused by any conflict.³⁴ That’s another way of saying that legal trials redress wrongs that were inflicted but may not fully address harms undergone. With regard to any survivor, “there may be not just the physical harm done to her or her property, but the resulting fear and anxiety over the victim’s loss of a sense of control over her life.”³⁵ Because court settings focus narrowly on legal culpability, they will inevitably leave many harms unredressed or fail to find all the sites where repair is needed. If being heard helps alleviate feelings of abandonment, then truth commissions may be the right choice where airing diverse truths and finding out what happened matters more than legal culpability. Most truth commissions cannot recommend punishment or lead to a trial, and some even trade truth for amnesty, but the widespread belief of those who argue in their favor is that being given a place to speak is as meaningful a step forward for many survivors as would be participation in a court case. And a court case, as we’ve seen, will leave many pertinent facts uncovered, not only because of the narrow focus on legal culpability but also because an adversarial process does not tend to produce a full confession. With regard to truth commissions, Phelps points out that

storytelling settings can provide a different kind of truth than a mere recitation of facts…. These settings can reveal the truth about what oppression did to people—not just the recitation of events, but what the oppression felt like, how it changed and destroyed lives, even lives not touched by a specific crime. Because so many stories can be told, a larger picture emerges in which individual victims can see their place in a community of survivors.³⁶

For Phelps that matters more than that those who testify may misremember key events due to trauma or simple memory failure, or even lie and not be found out because of a lack of rigorous fact-checking. From the kind of stories produced by a truth commission we learn more than what can be said in statements verifiable as true or false. In other words, there are certain truths that simply could not be established if we subjected them to the standards of what legalism calls truth.

But truth commissions also have their limits and are inevitably not open to all truths. In South Africa, the TRC focused on “grave violations” of human rights. The only crimes that counted as “grave violations” (and thus would qualify victims to testify and to request reparations) were killing, torture, severe ill-treatment, and abduction. “It meant that victims of forced removals or of Bantu education or any other of a myriad of laws passed by the apartheid government, or of the effects of those laws including hunger, poverty and the lack of basic health care, would not be deemed victims according to the Truth and Reconciliation Commission,” Tristan Borer points out.³⁷ Every institution has a design, and every design has its limits. So, though Gobodo-Madikizela is right that more expansive stories could be told (and were told) before the TRC, it is also true that very many stories were not told there, and a large number of victims of apartheid did not qualify to testify. According to Borer, “while the TRC certified only approximately 20,000 individuals as victims and fewer than 10,000 individuals as perpetrators,” surely there were more than 30,000 persons who gave and received harm under apartheid.³⁸

The South African TRC also ignored important distinctions such as the difference between direct and indirect perpetrators (meaning, for instance, that a low-level functionary—a direct perpetrator—might have to apply for amnesty, but someone at the top of the chain of command would simply be able to deny that he ordered any unlawful actions), and created no space for group perpetrators. If we can’t look at institutions such as police forces or political parties as perpetrators, there is something very important about the injustice of apartheid that we will not see. And if we can’t look at the supportive roles played by the health, legal, media, business, and religious sectors, we will also miss something about a wider responsibility for justice and injustice.³⁹ The TRC did hold hearings focused on the response to and participation in apartheid of key sectors of society—religious community, law, business, labor, health, media, prisons—but brevity, lack of publicity or preparation time, and other factors made these hearings less than effective. It is certainly not the case that every member of, for instance, a political party or business practice that facilitated the success of apartheid bears direct (or legal) guilt—some may even have voiced opposition. What matters here is that without a sense of how much support these diverse groups lent to apartheid’s structures, we will not have an accurate picture of how deep and broad the injustices were. That means that observers, victims, bystanders, and beneficiaries may find it harder to put their finger on what was wrong with official tolerance of violations or bystander complicity. And that means that an institution designed as the TRC was to transcend the limitations of legal blame would still fail to mark well the difference between ethical and legal responsibility. That failing is in keeping with Panu Minkkinen’s reminder about truth commissions that “even if they operate at the fringes of law, there is nothing radically new about the way they function. It is still a more or less formalized encounter between an offender and a victim before a seemingly neutral third party that endorses the objectified outcome through its authority.”⁴⁰ If, on some important level, the TRC is another juridified process focusing on the power of institutions to find individuals responsible for harms with complex social causes, the majority of those who care to pay attention to the TRC process may not see just how widely the weight of responsibility for past injustice ought to be felt. As Borer states (citing Mahmood Mamdani), “The narrow legalistic definition employed by the TRC has serious implications for how the injustices of apartheid will be historically remembered as well as implications in the practical realm of reparations and restitution.”⁴¹ Borer and Mamdani remind us that, though truth commissions begin as alternatives to legalistic responses to past harm, most of them are creations of law as well as complex institutions with rules and procedures that determine what counts as harm and what counts as truth.

That is true not only of South Africa. In Argentina, the National Commission on the Disappearance of Persons (CONADEP) was limited in its mandate to reporting on those who had disappeared. That meant that those who were tortured and then survived were not heard. (The same is true of Chile’s National Commission on Truth and Reconciliation.) The work of the commission did help to give voice to the void where the loved ones and comrades of so many had simply vanished. That is why many believe that truth commissions are a better choice after a period where truth is hidden or denied. Aryeh Neier argues that “truth became the essential means to combat disappearances and death squad killings” because “in confronting crimes of repression that were invented to be deniable, it was necessary for the human rights movement in the first instance to prove that they had taken place and, in the second instance, to demonstrate who was responsible.”⁴² Since truth commissions separate truth from determination of punishment, they are more likely to get a more thorough truth, and that may be what people need—more than punishment of the guilty.

That each truth commission is slightly different is a positive attribute. Each institution is designed to respond to the very different contexts in which truth and justice matter after past injustice. Sometimes legal justice is more important than truth, and sometimes truth is more important than legal justice, and it will always be the case that not everyone affected by past crimes will agree with the decision that is taken by a government or community: note, as an example, that three prominent families of victims challenged the constitutionality of the South African TRC’s power to grant amnesty.⁴³ They wanted trials and punishment.

Even if it is clear what part of the justice and truth continuum “matters” more to a transitioning society, political context will impact what is and is not possible after entrenched conflict. Amnesty was accepted as part of the South African TRC as a compromise, not as an ideal design. With response to past harm, what is possible and desirable in each case will vary. Pertinent factors include the past of the institutions and the society; local traditions and methods for dealing with the past; whether there are prospects for community building; how much time has passed since conflict or violence; numbers involved in the conflict; whether conflict was one-sided or complex; whether the current governing power is new or comprises members of an old regime; continuing distribution of minority and majority groups, victims, and perpetrators; and the involvement of international institutions and NGOs—these things all affect what is possible, and vary from site to site.⁴⁴ Ferme discusses the case of a young soldier “trained” to tell his story by participation in Sierra Leone’s TRC, only to return to his community and find that, for them, silence and forgetting were the chosen means for dealing with the past—and were much more native to the region as coping mechanisms: “In his pursuit of individual attention for his story, he was undermining their own collective hopes for moving beyond their suffering.”⁴⁵

Truth commissions can fail in as many ways as can legal cases: they may, for example, cover only a select kind of crime, leaving many abuses unheard; they may lack the power to compel testimony from those most responsible; they may fail to set a deadline for publishing a report, fail to publicize the report, fail to write a report, or may lack the power to get official recommendations taken seriously by government actors; they may fail to live up to their promises. But when they succeed, they start to build a shared narrative that may make repair possible for those who most need it.

TIME AND RECOVERY

The notoriety of the South African TRC has had an impact on how people imagine truth commissions.⁴⁶ A form that was once thought to have truth seeking or investigation as its main goal (as was the case in Chile, Argentina, El Salvador, and Guatemala) is now widely seen as a site for truth telling or performance and a mechanism for achieving peaceful societal reconciliation. However, even if the form of truth telling/performance were the right fit for every postconflict society, we are still in the midst of a historical arc in which the success of South Africa’s TRC is undecided. South Africa is still largely a divided society: one part success story consisting of a stable political system, honest courts, and a growing economy, and the flip side of that success, a society plagued by impoverishment of 45 percent of the country, a 40 percent unemployment rate, and a Gini coefficient (a statistical measure of inequality) of 0.6, marking it, alongside Brazil, as “the most unequal society in the world.”⁴⁷ Continuing inequality, along with a failure of the government to live up to promises attached to the compromise measure that offered amnesty in exchange for truth at the initial moment of transition, have led to a sharp decline in approval of amnesty, decreased acceptance of its necessity, and more demands for accountability. In longitudinal studies conducted by David Backer, 91 percent of respondents in 2002–2003 accepted amnesty as a necessary compromise to avoid civil war. By 2008, acceptance numbers had dropped to 70.5 percent.⁴⁸ In turn, in 2002 57.5 percent approved of amnesty as a practice, whereas in 2008 that number had fallen to 20.4 percent. Backer argues that this change in attitude shows us at least two things: (1) a high rate of acceptance does not necessarily mean a high rate of satisfaction—especially when it involves enormous compromise—and so we should be mindful of what is promised and what is delivered, and (2) what a government does in the wake of an initial compromise, and how its decisions impact the lives of people over time, will determine how stable the settlement is. The original high rate of approval was, Backer suggests, attached to reluctant acceptance of political realities paired with an expectation that the government would live up to its promises to prosecute those who did not receive amnesty, make meaningful economic changes, and compensate victims with reparations. In the time between surveys, reparations were made only begrudgingly (with South Africa’s president Thabo Mbeki arguing that the liberation struggle was not fought for money⁴⁹) and at lower levels than promised. Also during that time, the National Prosecuting Authority policies around prosecution were modified, allowing enough discretion in prosecuting cases that many thought it amounted to a second amnesty, this time without hearings.⁵⁰ All of that may have led to a widespread perception that promises were not being kept. Yazir Henry, a survivor of the ANC’s (African National Congress) armed struggle against apartheid, makes this observation: “Legal and political apartheid has gone but social, economic and psychological apartheid remains and will for a long time to come…. Not only do we live with serious post-war trauma, we carry this condition in a context of continued social and economic oppression.”⁵¹ That is why Backer concludes, about transitional justice in general, that

the immediate consequences of any measure do not necessarily represent a durable status quo. Instead, these outcomes are contingent, subject to ongoing scrutiny and reassessment by interested stakeholders and therefore vulnerable in the event of altered conditions, including the introduction of new policies and the lack of follow-through on existing policies.⁵²

Attitudes toward reconciliation are always subject to revision over time. Social norms and surroundings, institutional rules and procedures, and government policies will impact how persons hoping or struggling to get beyond an unjust past will experience that past in the present moment.

Reconciliation of past with present has not been a settled matter in Argentina either. CONADEP, created by President Raul Alfonsín in late 1983, gathered testimony on forced disappearances in Argentina’s Dirty War, covering the years 1976 to 1983. An official summary report was delivered to Alfonsín in late 1984, and that opened the door to prosecutions of the military junta. The military had granted itself amnesty before handing over power to Alfonsín, but Alfonsín overturned the self-amnesty law, and nine heads of the military junta were convicted in 1985. The military rebelled, so in 1986 and 1987 Alfonsín passed laws restricting further prosecutions. In 1989–1990, Alfonsín’s successor, Carlos Menem, pardoned those who had been convicted but also passed laws authorizing reparations for those who had been detained by the military. In 1996, when a retired navy officer admitted to throwing live political prisoners out of airplanes into the sea, “Argentina discovered how much of its difficult past was still unresolved, both emotionally and factually,” with months’ worth of newspaper articles and crowds protesting in the streets demanding more truth.⁵³ In June 2005, under pressure from an organized public campaign, Argentina’s Congress overturned the law that had restricted the prosecutions of the military. Transitional justice has taken many turns in Argentina.⁵⁴

CONADEP documented that 8,960 persons had been kidnapped by the military or the police and never seen again. Human rights organizations usually place the number much higher, around 30,000 persons. However, in the course of offering reparations to families of the disappeared, the human rights office of the government of Argentina “was able to document many more cases and a wider array of victims than the truth commission could.”⁵⁵ As I mentioned, the truth commission focused on the disappeared, leaving to the side those who had been killed or who had disappeared but whose bodies had turned up and been identified, or who had been detained and tortured but survived. That meant that the truth unearthed by the truth commission was about one narrow slice of Argentina’s violent history. The evolving policies on reparations allowed a wider truth to surface. In response to cases brought before the Inter-American Commission on Human Rights (an organ of the Organization of American States), the Argentine government developed a program to award up to $220,000 (depending on amount of time held) to petitioners who had been detained as political prisoners.⁵⁶ That program then expanded to include prisoners who had been detained and then released and forced into exile. Reparations of $220,000 were then made to family members of the disappeared. Further reparations may be awarded to new cases not included in Nunca más, the truth commission report. So, though CONADEP operated with a limited mandate, work that continued after the commission’s end uncovered other truths and helped assuage the ethical loneliness of, for instance, torture survivors whose voices were left out of the truth proceeding. Unmet needs for justice fueled innovation in awarding reparations.

What many consider to be as important for Argentina as CONADEP’s uncovering of truth and the government’s offer of monetary reparations is an expansion of available categories for describing loss. The creation of a new legal category, “forcibly disappeared,” meant that families could process wills, distribute inheritance, and take up other matters having to do with a person’s estate but still stop short of declaring a person dead.⁵⁷ Before the “forcibly disappeared” category was created, the only way to access inheritance, insurance, or other comforts or procedures associated with the passing of a loved one (including closing a bank account or selling property) was to have the missing person declared “presumed dead.” But the death, declared on those terms, would not carry with it an acknowledgment that it was state inflicted. David Becker and his coauthors describe the impossible choice faced by families of the disappeared: “If family members choose to accept the death of a loved one, they [feel like they] ‘kill’ him or her. If they choose to maintain hope, they deny their everyday experience of the loved one’s absence.”⁵⁸ When that is the case, families may remain unable to take up processes of mourning or commemoration that may make loss more bearable.⁵⁹ In conditions such as this, some psychiatrists have found that “some families may fall into a limbo of ‘ambiguous loss,’ torn between hope and grief, unable to return to the past or plan for the future.”⁶⁰ “Forcibly disappeared,” as a category, allows families to move forward without embracing a lie about the conditions of their loss.⁶¹ This marks a site where a legal innovation responds reparatively to how loss doesn’t disappear but transforms over time. It is a revision that makes the present moment more rather than less livable.

EVIDENCE OF REPAIR

Let’s return to where the chapter began—the importance of repair.⁶² Legal trials and truth commissions both respond reparatively to past harms, and their different strengths and weaknesses suit them to different post-conflict settings. But what, precisely, are they engaged in repairing? Social institutions, the rule of law, civil relationships, social infrastructure, all are likely to be in need of repair in the wake of long-standing injustice. It is complicated but not impossible to fix those things. But what about the people who were harmed?

In the past twenty years many law review and other academic articles have asserted that testifying in criminal trials or truth commissions is healing or cathartic for survivors, and that criminal accountability facilitates political reconciliation, or that the truth of truth commissions does. Many of the assertions about the healing power of testimony and the reconciliative effect of truth were authored anecdotally or hopefully, without backing from empirical data. I don’t state that as an accusation, because such data largely did not exist. Empirical studies did not exist because these forms of justice are relatively new and because, as Eric Stover points out, the experiences of witnesses have not always been important to larger political debates.⁶³ Oskar Thoms, James Ron, and Roland Paris argue, regarding transitional justice, that, “given the paucity and contradictory nature of the empirical findings to date, there appears to be an urgent need for more sustained, systematic, comparative analyses, and for greater attention to fact-based rather than faith-based claims”;⁶⁴ Jamie O’Connell asserts that we need to replace anecdotal evidence or the mere hope that trials are cathartic with empirical evidence that will help us understand what trials can and cannot accomplish for victims;⁶⁵ and Fiona Ross points out, about truth commissions, that “few studies have yet focused on the social ramifications of testimony.”⁶⁶

There are now studies—using data from South Africa, Sierra Leone, Rwanda, the former Yugoslavia—suggesting that testifying in institutional settings can be healing for some.⁶⁷ But there is as much evidence that testifying can reawaken trauma or a sense of injustice rather than helping victims find closure. Stover asserts that

human rights activists often valorize the “therapeutic value” of war crimes trials for victims and witnesses. They argue that victims who are able to recount horrific events in a context of acknowledgement and support will often find closure and be able to move on with their lives. The findings of this study (and corroborating data from our parallel studies…), however, suggest that such claims so far as war crimes trials are concerned reflect more wishful thinking than fact. The few participants who experienced cathartic feelings immediately or soon after testifying before the ICTY found that the glow quickly faded once they returned home to their shattered villages and towns. This was especially true for witnesses who faced uncertainties in their lives.⁶⁸

Stover’s observations about what testifying did for witnesses in the ICTY cases is reflected in Ross’s analysis of the experience of women testifying before the South African TRC. Ross argues that, though the TRC was publicized as “giving voice to the voiceless,” in doing so it assumed a connection between “having voice” and “being heard” that does not hold in all contexts.⁶⁹ Her work shows that “the effect of testimonies generated through the truth commission, media, academics and others is far broader and perhaps more complex than naïve assumptions about testimony’s healing effects suggest.”⁷⁰ Along those lines, Debra Kaminer and her coauthors found that there was no significant difference in the rates of depression, PTSD, or other anxiety disorders among those who gave public testimony, closed testimony, or no testimony before the TRC in South Africa.⁷¹ In other words, having testified did not make a difference in recovery (in at least some of its aspects), though having a forgiving attitude did. A study by Karen Brounéus showed that, in Rwanda, gacaca witnesses were not healed by the experience: “Survivors who have witnessed in the gacaca have significantly higher levels of depression (20 percent higher relative risk) and PTSD (40 percent higher relative risk) than survivors who have not witnessed.”⁷² Judith Herman argues that “the wishes and needs of victims are often diametrically opposed to the requirements of legal proceedings,” relying on her years of experience working with survivors of sexual violence.⁷³ And O’Connell, gathering together the spotty and mostly anecdotal evidence about how court cases affect victims, recommends “less emphasis on judicial proceedings as mechanisms for promoting healing, more attention by courts to victims’ psychological needs in those human rights cases that do go forward, and additional research to deepen our understanding of victims’ reactions to trials.”⁷⁴ It simply is not safe to say that testifying before a court—local or international—or truth commission leads to healing or catharsis for victims.⁷⁵

All of this points to the need to be careful about what counts as evidence when we author arguments about what institutions do and do not accomplish for survivors. Many articles rely on anecdotal evidence to make conclusions that we simply can’t verify. I’ll follow the chain of evidence used in a few different articles to make a point about how hopeful assertions that trials and truth commissions help survivors emerge. Before I do that I want to note that, writing about very new institutions and procedures, the authors whose work I describe here would find very little evidence other than anecdotal on which to rely. It’s not that the evidence was out there and they failed to look for it. What’s more, anecdotal evidence can offer fertile ground for theorizing possibilities and outcomes in a field like this where outcomes and possibilities truly matter. It is too soon to know with full confidence whether any of these institutions benefit those who testify in the long run. So, without passing blame, I simply want to discuss how it becomes possible to conclude that testifying is good for survivors.

Sarkin, in the context of arguing that in transitioning societies more than a legal decision may be necessary before justice is seen to be done, states that “allowing victims to testify about what occurred can have a very positive cathartic effect.”⁷⁶ It’s a very quick point he makes while developing a larger argument about how international institutions might best incorporate retributive and restorative processes. In support of the claim that testifying can be cathartic he cites an article by William Burke-White that argues for the creation and greater use of regional rather than international courts, because (Burke-White argues) “achieving the goals of restorative justice requires a close connection between the adjudicating court and the society affected by international crimes.”⁷⁷ Burke-White thinks that the physical separation of some international courts (like the ICTY) from the communities they serve makes it harder for those courts to have a real impact in terms of building confidence that past injustices will be punished and will not be repeated. In making this argument, he writes (and this is the page Sarkin cites),

To provide a concrete example, the first case of rape as a crime against humanity in international law—the Kunarac case before the ICTY—had an enormous cathartic potential to restore the people of Foča, the town in southern Bosnia in which the events occurred. Yet, even as thirty-eight women detained in rape-camps told their stories to the ICTY, the people of Foča were isolated from the events of the trial and largely unable to personally benefit from the proceedings.⁷⁸

That is surely an important concern of international tribunals and, though it would take some time and study to know for certain whether the Kunarac case or the ICTY more generally will have a positive impact on the Foča region, Burke-White is not alone in wondering whether courts located far from the scene of the crime do justice as effectively as a more local effort would. (Similar concerns emerged about locating the ICTR in Arusha, Tanzania, and the ICC in The Hague.) But it is not clear how Burke-White’s observation that the Kunarac case had cathartic potential for Foča supports Sarkin’s contention that “allowing victims to testify about what occurred can have a very positive cathartic effect.” Surely it can have a positive or cathartic effect. But it also may fail to do so, and may even inflict further harm rather than helping.

Writing about the Extraordinary Chambers in the Courts of Cambodia (ECCC, also known as the Khmer Rouge tribunal), David Sokol maintains that “the experience of speaking openly and questioning the accused on any topic can greatly facilitate the healing process for victims” and cites a comment made by one civil party to a case as evidence.⁷⁹ He adds that the court’s move to reduce victim participation is “likely to negatively impact the national healing process,”⁸⁰ citing as support a scholarly article by Tessa Capeloto that argues that “providing victims a role in the process gives them a ‘sense of empowerment’ and ‘may bring them a step closer to healing and rehabilitation.’”⁸¹ Capeloto cites analysis by Susana SáCouto as support for this point.⁸² SáCouto argues that victims derive benefit from greater participation in legal trials and offers as evidence a scholarly article by Jonathan Doak describing several surveys that “have found that, where domestic criminal law allows victims to ‘participate’ in proceedings, such as in Germany and Poland, those who have exercised this right expressed greater satisfaction with the criminal justice process than those who chose not to.”⁸³ So: Sokol says Cambodia needs to keep victim participation vibrant because Capeloto says that will empower and may heal victims because SáCouto says that victims benefit from participation because Doak cites surveys about domestic practices of victim participation in Poland and Germany. SáCouto—whose article begins by stating that not enough has been done to study the wider role victims might play in bringing perpetrators to justice—does a good job balancing concern for victims with safeguarding defendants’ rights. She shows why victim participation matters while also describing the very real obstacles faced by the ICC in its own plans to allow victims greater participation in trials. SáCouto also acknowledges, in a footnote, that the idea that testifying before a criminal tribunal helps victims regain their sense of power is “not without controversy,” and she cites some articles arguing that the process is neither healing nor rehabilitative for victims.⁸⁴

The article by Jonathan Doak cited by SáCouto and Capeloto is about victims’ rights in domestic trials in Britain. The surveys undertaken in Germany and Poland that Doak describes cover victims who made use of “subsidiary prosecution.” Subsidiary prosecution offers victims who make use of it the right to be present at all stages of a trial, to put questions to witnesses, and to provide evidence or make a statement beyond what the prosecution would do. It resembles the Cambodian court’s parties civiles role and so it makes sense that SáCouto would use it to support her argument. SáCouto’s main objective, however, is to show how victims might help bring perpetrators to justice, which is a different question from whether or not doing so is a positive or healing experience for them.

Again, I chase these articles down the rabbit hole of academic citation practices not to find fault with any of the articles—indeed all of them have valuable contributions to make to the larger debates in which they are engaged—but to show how evidence is working in this emerging field, in turn to draw attention to a lack of substantial proof for the contention that participating in a court case is healing or cathartic for victims who appear before international or hybrid tribunals.⁸⁵ Sokol’s article (where this extended citation chase began), while offering a helpful background to the heritage of civil party proceedings in Cambodian legal institutions, descended as they are from the French legal tradition, and using that backdrop to show how limiting the scope of victim participation may be harmful to the court’s mission to do justice, also falls into a broad pattern of offering hope as evidence.

The hope in these articles is based on a series of good hypotheses. For those who have been living in a regime defined by hidden truth or secret crime, both testifying to abuse and learning the truth of what happened can be life affirming. In addition, in some psychiatric treatments for trauma, one goal of therapy is to help survivors build a narrative of what happened so that the story can become part of a larger life story rather than that life’s determining event. Speaking and being heard where before there was silence—whether because the story was too painful for the victim to tell or there was no community willing to listen—can be a powerful experience. It would thus certainly make sense if testifying in trials or truth commissions were healing or cathartic for survivors (with the caveat that, as Herman points out, “if one set out by design to devise a system for provoking intrusive post-traumatic symptoms, one could not do better than a court of law”⁸⁶). The one victim Sokol cites supports this belief. Mrs. Chum Neou “told participants how she used to cry every time she talked about her experience with the Khmer Rouge period. However, after participating in the trial with help from the psychological support organization, TPO, she is now able to speak in public without crying.”⁸⁷

So, the hope in the articles we’ve examined in this section is based on a series of good hypotheses. But those hypotheses in turn seem to spring from an unquestioned faith in legalism’s preferred solution to human abandonment: establishing formal equality in rule of law proceedings. As I’ve begun to argue and hope to show in what remains of the book, that is not a bad goal, but it is also unlikely to get a person or polity all the way to recovery. As an assumption about selves and worlds it may even cause further harm. We should be careful about what counts as evidence or truth whenever we try to determine what ought to be done about redressing past harm.

None of this is meant to suggest that empirical proof is somehow more weighty than theory or hope. It would be just as devastatingly wrong to submit to the tyranny of data as it would to ignore emerging evidence (in data and other forms) that what many hoped or thought was true is more complicated than anyone projected. After all, anyone who brings hope to justice already knows that it faces formidable obstacles and yet is still a necessity. As I noted at the beginning of this section, when we are working with new institutions designed to deal in new ways with old or new crimes, we simply won’t—for many years—have empirical evidence to back our claims. It pays to observe how new procedures and institutions affect people over time. But even when we have time and a good set of data, we may be misled in our interpretation of what it means. And even when we interpret carefully and thoughtfully the facts we have, the facts collectable in data form may not tell us the whole story. In a recent commentary on current use of “big data,” Kenneth Cukier and Viktor Mayer-Schönberger observe that

Google runs everything according to data. That strategy has led to much of its success. But it also trips up the company from time to time. Its cofounders, Larry Page and Sergey Brin, long insisted on knowing all job candidates’ SAT scores and their grade point averages when they graduated from college. In their thinking, the first number measured potential and the second measured achievement. Accomplished managers in their 40s were hounded for the scores, to their outright bafflement. The company even continued to demand the numbers long after its internal studies showed no correlation between the scores and job performance.⁸⁸

The authors point out that if Google executives followed this logic to its conclusion, they wouldn’t hire someone like Mark Zuckerberg or Steve Jobs since neither received college degrees. And they would also fail to see how, no matter how useful data is at helping us to see the world as it is, some features of the human condition will never be fully captured in a data set.

Pumla Gobodo-Madikizela makes a similar point when, after discussing two kinds of questions about remorse—whether we can verify that someone who expresses remorse actually is remorseful and whether authentic remorse is even possible in the wake of unthinkable violence—she observes that it just is true that sometimes “when perpetrators do in fact express regret or guilt or contrition, however it may be ascertained, what seems to lie…‘beyond the purview of apology’ can in fact be transformed from an unforgivable deed into a forgivable one” in that people can admit that what is done cannot be undone and still move forward.⁸⁹ In other words, the work done to quantify how forgiveness and remorse work in personal and political situations is important since it may help us understand something about ourselves, others, and our possible joint futures. But, she adds, “philosophical questions can and should give way and be subsumed to human questions, for in the end we are a society of people and not of ideas, a fragile web of interdependent humans, not of stances.”⁹⁰ Though I would be careful drawing a line between societies of people and societies of ideas (since clearly every social grouping is made up of both, the ideas come from people, and people in turn become who they are in part through their ideas), I take her main point to be that no amount of careful research will be able to capture or predict with complete success how human relationships will transpire. So, by all means, let’s continue to project better futures. But also, let’s not assume we know conclusively how institutions help people before we’ve heard people speak.

HOPE AND FACT

I’ve just spent some pages making the argument that while we need to pay better attention to empirical evidence, analyses based solely on empirical evidence are likely not up to the task we face when we respond to grievous harm. Why would I do that? When we are faced with recurring world-destroying violations for which no existing response is adequate, often the greater part of what we have will be theory, hope, and the responsibility to use those well in designing better responses. Philosophical approaches give us tools with which to project worlds better than what we have at present. But philosophy should also teach us to watch for evidence that what hope designed may be complicated by the realities of daily living and the inevitable human shortcomings of the initial projections. So I am not authoring an argument against idealist projection of better futures—it would be irresponsible to do so, and also self-defeating since this book is, when viewed from some angles, an idealist projection of better futures. Rather, I am pointing out that, in what is a fairly new field of endeavor, anecdote and hope sometimes conspire to create expectations that may not be borne out by the reality of lives or proceedings. Giving close attention to what institutions can and cannot accomplish helps all involved develop reasonable expectations. And when people involved—as participants, designers, activists, scholars, and a host of other roles—in an institution as important as an international criminal trial or a truth commission have reasonable rather than misleading expectations about outcomes, outcomes are more likely to be happy.⁹¹ So, among other things, recent and future studies will help those who project, design, administer, judge, and write about transitional institutions and their alternatives to make judgments about how best to treat victims who participate.

Sometimes what is learned from such a process of reflection is as simple as figuring out how to do a better job letting everyone involved know what the process they are involved in is, how it works, and what its goals are. Christine Englebrecht, writing about the criminal justice system in the United States, points out that people who appear in court as witnesses are often shocked to find out that criminal offenses are considered by the state to be against the state, not against the persons who were most impacted by them.⁹² And so they are let down when they see how little input they will have in what they rightly think of as their own case. Englebrecht recommends funding victim advocates, whose job it will be to help remedy a system where there has been too much reliance on preconceived ideas of what an average victim would want or need—ideas formed without consulting with victims and without considering the wide range of different needs and desires different victims might have. In other words, she proposes hiring someone who can listen well.

In Cambodia the domestic standard was that reparations mean money, but at the ECCC, a hybrid domestic-international court, “only collective non-financial reparation is possible,” and not enough effort was put into letting participants know ahead of time that they would receive no financial compensation for their losses.⁹³ That led to a lot of disappointment and disillusionment with the court among the people to whom it hoped to deliver justice.

At the ICTY, Marie-Benedicte Dembour and Emily Haslam observed various indicators that witnesses had not been properly briefed on what to expect from the proceedings, which for them threw “into sharp relief the limitations of victim-witnesses’ ‘entitlement’ to be heard.”⁹⁴ That led them to wonder whether international tribunals should even use witnesses: “If the giving of testimony is an ordeal rather than an empowering process for the witness, one must question whether relying on witnesses is the most efficient and morally justifiable way to establish judicial facts.”⁹⁵ Of course, we would want to be careful about removing those most affected by the violence from processes meant to adjudicate wrongs inflicted on them. But perhaps more care could be exercised in determining when witnesses get called to testify. Dembour and Haslam ask, “Why was it necessary to hear victim-witnesses to document the fall of Srebenica?”⁹⁶ What they mean is, why subject already traumatized survivors to the difficulties of testifying in a legal setting when the facts at hand could be established by other means? I would add: before answering this question with any finality, listen to the persons whose lives were most impacted by the crimes being adjudicated.

O’Connell, who, noting the lack of hard evidence for many of the arguments about the healing capacity of testifying in international criminal trials, gathers what evidence there is and combines it with the observations of mental health professionals working with survivors, argues that including victims in court proceedings is important. Inclusion matters because it may help alleviate ethical loneliness: especially if the original harms were sponsored or ignored by the government, the victim may feel that she has been abandoned by the legal system and the larger society. A successful case may help combat the loneliness of having been abandoned. But survivors of human rights abuses and other violent crime may have a wide range of posttraumatic symptoms, such as anxiety, insomnia, flash-backs, nightmares, and acute distress triggered by things that remind them of the abuse. And so O’Connell argues that courts using traumatized survivors as witnesses ought to work harder to balance the demands of due process with the needs of victims and should recognize that testifying is not necessarily a healing experience for victims. O’Connell recognizes that some victims do “find comfort and a sense of empowerment in pursuing justice through law.”⁹⁷ But even those who do may also “suffer new abuses, such as reprisals or harassment through the discovery process” that may cause psychological stress or a return of trauma (301). He recommends that legal institutions “facilitate protection of witnesses and provide a range of support to them before, during and after they testify” (324). Given that common psychological effects of human rights violations include a loss of trust in the world, a sense of abandonment by humanity, and diminished confidence in one’s ability to evaluate one’s surroundings, O’Connell argues that, whenever possible, courts and their judges should “address victims’ needs for information,” reassure them that they were not responsible for the violation, and acknowledge officially the abuser’s culpability. He writes, “By listening carefully, [judges] can implicitly affirm victims’ understanding of what happened, helping repair their confidence in their own judgment” (343). O’Connell suggests that abandonment—what I’m calling ethical loneliness—should be countered by court officials with practices of careful listening and positive revision. Depending on the case and the facts, such practices may or may not be compatible with the larger goal of fairness contained in the idea of procedural due process. But it would be a good step forward if we stopped believing that truth and legal justice had healing powers in some simple sense for survivors of violence and abuse. That step forward would help us recognize more clearly the different things truth and legal justice do accomplish. And it would help us determine what else is necessary—beyond truth and beyond legal justice—for reconciliation or recovery from violence.

The demand to listen better may sound simple, but it is not. As chapter 3 shows, even institutions designed for hearing are designed to hear some things more than others. Sara Kendall and Sarah Nouwen add a new wrinkle with their analysis of the ICC’s rhetoric of victimhood.⁹⁸ If one attends carefully to how the ICC describes its work and its goals, it becomes clear that both lawyers and the court itself claim to represent victims. The court, however, turns the plurality of diverse victims into an abstract category, “The Victim,” in whose interest many different representatives can claim to be acting even if those representatives have never met any real victims and are mostly just doing their jobs as officials of a legal system. Kendall and Nouwen argue that the court may hope to act on behalf of victims but lacks the institutional capacity to understand them as real persons with specific political or cultural ideas about past, present, and future, as well as views about what justice ought to be.

Of course, the ICC’s rules allow victims to participate not only as witnesses but also as victim participants—parties to the case who can contribute to the case even if they are not called as witnesses by the defense or prosecution. That innovation (based on continental/inquisitorial traditions of parties civiles) responds to criticism of past tribunals (notably the ICTR and ICTY) that they did not do enough to address the concerns of a wide array of victims. We might call that a step forward, offering more ways in which legal stories might get told. It is part of why so much hope is tied to the ICC. But the ICC is a young institution and victim participation was not rigorously defined by its statutes, instead leaving what it will mean to rulings in cases. It is too soon to say whether victim participation will do anything meaningful for a wider array of victims, but already one can see the many limits to what it can do. Victims who aren’t witnesses can present their concerns (if the court qualifies them as victims), but they can present their concerns only through representatives; those representatives may represent a very large number of victims; the victims represented by a representative may not all have the same interests; if victims are parties to a case that doesn’t end up being brought to court, those victims get no chance to be heard; if a defendant is acquitted, there will be no reparations; if there are reparations, they will likely be dispensed in community-based ways rather than to individuals; and so on. Furthermore, in order to qualify to be heard, victims have to register with the court, in either English or French, in legal documents. That means that they must know how to read and write (in English or French) and that they can prove they are who they are. That is not easy for many people who live in conflict-ridden zones. These are all limitations already placed on an expansion of the category of hearing at the ICC. Of course, when a court dismisses certain concerns as legally irrelevant and pronounces certain procedures as legally valid, it is well within its rights to do so. But in doing so it will have already decided what the right questions to ask about a situation are and, to a certain extent, what the range of answers can be. In other words, it will have circumscribed in advance what can be heard.

REFRACTION

I began this chapter by calling it a tangent or a digression from the main argument of the book. It looks at international, domestic, and hybrid post-conflict trials as well as truth commissions as serious innovations aimed at responding to harm. That this chapter digresses slightly from the arc of the book’s argument demonstrates that, with regard to the larger conversation about transitional justice and political reconciliation, this book is a tangent. Its refraction of the field is intended to let us view some familiar things differently.

I interrupt the self-assurance of the narrative about transition and reconciliation with a description of ethical loneliness not only because I think it gives us a better understanding of the kind of being a human being is but also because it may help many—survivors and those whose lives have been more fortunate—see harm and its repair in ways more productive of new possibility. It changes the subject. Much has been accomplished by the many responsive institutions that have been created in recent decades. But few would argue that the problem of social/political abandonment has been solved; many would contend that it has barely been addressed. I call the institutions I discuss here responsive for a reason: they respond to crime. They may also hope to prevent future crime—the Preamble to the Rome Statute that created the ICC even includes the claim that the institution was established “to put an end to impunity for the perpetrators of these crimes and thus contribute to prevention of such crimes.”⁹⁹ It is a tenuous “thus,” but not one without hope. Any fan of arguments in favor of deterrence knows how difficult it can be to try to prove how one thing caused another thing not to happen. In any case the international community could put a lot more investment into more kinds of prevention.¹⁰⁰ Some kinds of prevention require tools already on offer in discourses of transitional justice and political reconciliation: infrastructure, responsive development, engaging local stakeholders, investments in education and health, developing rule of law institutions, and so on. All of those things might help decrease the isolation felt by individuals and groups facing unequal treatment or recovering from injustice. But those things also might fail to add up to meaningful change if we don’t take seriously the realities of how selves and worlds are formed cooperatively in ways chosen and unchosen, for better and for worse. In addition to preventing serious harm, we must learn to prevent ourselves and others from feeling innocent of all responsibility for that harm and its prevention.

The tradition of liberal rule of law legality assumes that the subject of law and of rights is autonomous and self-sufficient, capable of consenting to take on any duty he or she would bear. That narrative respects individuals and supports liberal ideas about justice but cannot explain to us why we might bear duties beyond our legitimate legal duties. And yet such duties are indelible in our current political landscape: who is responsible for the refugee, the environment, the prisoner of war, the sufferer of poverty or famine, the victim of ethnic cleansing, the one to whom I never consented to owe anything, if we stick to narrow legal grounds? Questions like that leave us in a situation where the weight of justice hangs on the distinction between consent to obligation and responsibility for what no one would choose.¹⁰¹

As I mentioned in chapter 1, there are harms—and remedies—that are rendered utterly inscrutable if we limit ourselves to thinking that a human self can experience meaningful autonomy separate from social conditions where many others recognize that self’s autonomy. We may desire the formal equality and personal autonomy of the liberal political and legalist vision. But I do not think we can attain it in any lasting or meaningful way when we approach selves as if they were self-sufficient monads. In other words, it is dangerous to assume as a starting point what you want to reach as your goal.

And so this book discusses the loneliness of social abandonment, the causes of that loneliness, practices of hearing that fail to listen, ways of revising the past in the present that make the future brighter or darker for those who were abandoned, and what we might learn from all of that about the desire and potential for political forgiveness, transitional justice, and political reconciliation. We won’t find a neat theory. But that’s not what we should want.

MEANINGFUL HUMAN RIGHTS

What survivors of abuse and oppression want from a process of justice or healing varies as widely as do human desires in general, but some hopes are shared.¹⁰² Survivors want their losses to be recognized and their willingness or unwillingness to forgive accepted as justified. In many cases, what those who testify in diverse settings desire is to be able to trust that they and the people they love will be safe. That is an utterly reasonable request that corresponds to what we might call meaningful human rights or an as yet unattained vision of equal justice. Like almost anyone else I’ve ever met in the history of the world, I want to be able to live safely and freely and be respected by my fellow human beings. Most people want that. Many people do not have that.

In attempting to honor such a reasonable demand of justice, of course one can set up the rule of law and enforce it, train judges to be impartial, and make the procedures and institutions open and known to all. That is a worthy goal. But it does not suffice to set up legal institutions guided by the rule of law and then inform everyone that the institutions are just, especially in a society recovering from mass violence or long-standing oppression. Reasoned argument on its own is not likely to persuade someone who has experienced persecution—especially persecution that was ignored or even authorized by law—that the rule of law will keep individuals safe from persecution, even if institutions guided by the rule of law are an individual’s best hope of attaining equal justice. Before reconciliation is possible, ethical loneliness must be confronted, acknowledged, and in some measure assuaged.

How this reassurance might be accomplished will vary according to history and context, but that context will always transcend legalism’s scope. Survivors want the harms they have undergone to be heard and the wrongness of them affirmed in a lasting way not only by perpetrators but also by the surrounding society. They seek the help of others to reassure them that they are living in a world with others, one where they will be protected when they are under threat. They seek meaningful human rights. Decades of hoping institutions could deliver that will have taught us, perhaps, that institutions cannot, on their own, make human rights meaningful. It seems to me that understanding the kind of being a human being is from within the scope of ethical loneliness, learning how to hear well, and building conditions where positive revision is possible will sooner get us meaningful human rights than will the insulated autonomy of the legalist subject.

Understanding ethical loneliness will get us closer to defining meaningful human rights or their more effective replacement in two ways. One, by helping us develop more robust understandings of what is lost by human beings who have been oppressed, abandoned by law and humanity, unprotected. And two, by making clear to us—in a way liberal legalism cannot—that if we are content to derive our duties only from conditions to which we would consent, we may as well give up on equal justice as an aspiration. No one will be reconciled, and many will be left unprotected, in a world where everyone dispatches every legitimate legal duty and nothing more.