Historical Justice

Historical Justice

This chapter explores the historical response to evil legacies and the question of what role historical accountability plays in liberal transition. Transitions appear—almost by definition—to imply periods of historical discontinuity. Wars, revolutions, and repressive rule represent gaps in the life of the state that threaten its historical continuity. The questions that arise are: as a descriptive matter, how do societies treat these periods of apparent historical glitch? To what extent is the response to past evil rule historical? And, normatively, in what sense is historical accountability a corrective, ushering in liberalization?

A popular view among contemporary political analysts is that a historical inquiry and record that assimilates the evil past is necessary to restore the collective in periods of radical political change. The claim is that establishing the “truth” about the state’s past wrongs, like successor constitutions or trials, can serve to lay the foundation of the new political order:

[S]uccessor government[s] [have] an obligation to investigate and establish the facts so that the truth be known and be made part of the nation’s history…. There must be both knowledge and acknowledgment: the events need to be officially recognized and publicly revealed. Truth-telling … responds to the demand of justice for the victims [and] facilitates national reconciliation.1

Like the normative claims for constitutions and trials in transition, the normative claim for an official historical account is that it enables the shift to a more liberal order. Collective history making regarding the repressive past is said to lay the necessary basis for the new democratic order. The claim is that this process is essential to liberalizing transition: The transitional history directed at a better future envisions a dialectical, progressive process. In the spirit of an earlier age, this hearkens back to the Enlightenment view of history—of Immanuel Kant, or Karl Marx, whereby history itself is universalizing and redemptive. On this view, history is teacher and judge, and historical truth in and of itself is justice. It is this view of the liberalizing potential of history that inspires the popular contemporary argument for historical accountability in transitions. Yet, the assumption that “truth” and “history” are one and the same2 evinces a belief in the possibility of an autonomous objective history of the past belying the significance of the present political context in shaping the historical inquiry. However, modern theorizing about historical knowledge considerably challenges this conception.3 When history takes its “interpretative turn,”4 there is no single, clear, and determinate understanding or “lesson” to draw from the past but, instead, recognition of the degree to which historical understanding depends on political and social contingency.

The questions then are: What is the particular role of historical inquiry and representation in transition? What is a transitional history? And what, moreover, is a liberalizing transitional history? What might the practices of transitional societies reveal about the normative claim regarding historical inquiry’s role in advancing liberalization? How, if at all, does the pursuit of a collective past advance a more liberal future?

What constitutes history in such periods, as the discussion below suggests, is contingent not only on the regions’ historical and political legacies but also on the context that is peculiar to transition. The idealized view of transitional histories as “foundations,” that is, as beginnings, elides the preexisting historical account. Historical accounts generated in transitional times are not somehow autonomous but build on antecedent, national narratives. The background of ongoing collective memory defines a society. Thus, the transitional truths are socially constructed within processes of collective memory. As societal practices in these periods reflect, the historical accountings are less foundational than transitional.

Transitions are vivid instances of conscious historical production. In these times it is historical production in a heightened political context and driven by political purposes. Politics has its epistemic implications. The intimate relation between the imposition of power and the control of knowledge is well explored in the works of Friedrich Nietzsche and Michel Foucault.5 Nevertheless, even modern intuitions resist explicitly politicized historical inquiry, as it poses a challenge to the ideal view of a philosophy of history characterized as largely independent of political concerns. Historical inquiry in transitional periods, therefore, poses a sharp challenge. The politicized nature of history often associated with repressive rule is exposed by the responses in transition. Though particular historical accounts have always been associated with certain political regimes, the uses of knowledge in politics are generally obfuscated by those in power. Historical narratives are always present; all regimes are associated with and constructed by a “truth” regime.6 Changes in political regimes, accordingly, mean attendant changes in truth regimes.

Collective memory is a process of reconstructing the representation of the past in the light of the present.7 Yet, the reconstruction process takes a distinctive form in periods of transition. In transformative periods, the relation of the construction of collective history to politics is simultaneously discontinuous and intertwined. For the construction of history in periods of political transformation is predicated on drawing a line of discontinuity, even as there is also adherence to some historical and political continuity. Transitional histories have their own narratives, but also link up and reappropiate strands of longer state history. Striking a balance between discontinuity and continuity, as we shall see, defines the practice of transitional history making, rendering it a delicate enterprise, yet endowing it with real transformative potential.

An understanding of how liberalizing politics influences the construction of history in moments of substantial political transformation ultimately can contribute to a better understanding of the role of history in ordinary times. The question of historical accountings in periods of radical political flux is an instance of a broader question of how societies construct shared truths. Epistemic consensus in a society is ordinarily considered to be created by the mechanisms of cultural transmission; truth’s meaning in societies presumes threshold shared understandings.8 Yet, in transitions, these threshold understandings are often fragile or missing altogether. What happens when a polity breaks down as it does in periods of repressive rule? Where is the authority in transition? The problem posed in periods of radical political change is that the usual bearings regarding shared judgment are missing. These are periods when shared notions of political truth and history are largely absent. In transition, the very foci of shared judgment that form the basis for a new social consensus are expected to emerge through the historical accountings.

How do societies go about constructing their pasts in a way that is collectively understood as shared and true? How do they establish what happened during much-contested periods of state history often involving massive state crimes? Below, the processes entailed in the construction of transitional histories are explored. Whereas contemporary theorizing emphasizes the relation of interpretive principles to their political and social context, transitional histories expose the relation of the given historical accounts to their legal forms and practices. What makes for transitional historical accountability is generated by forms and practices within a legal system. Transitional histories reveal how certain legal forms and practices enable historical productions and transformed truths, shedding new light on our intuitions about the role of history in liberalizing political change.

The country experiences discussed in this chapter illuminate the varieties of historical accountability: how societies struggle with the question of how to construct a collective account in radical political change, the many ways transitional societies create public histories, and the role of the law in these constructions. Collective memory is created in frameworks and through symbols and rituals. In transition, the oft-shared frameworks—political, religious, social—are threatened; so it is the law, its framework, and processes that in great part shape collective memory. In transitions, the pivotal role in shaping social memory is played by the law. Transitional historical narratives are produced through varying legal measures, such as the trials of the ancien régimes, or bureaucratic bodies convened for these purposes, and still other legal responses that imply marshaling a factual predicate. Finally, yet other independent accounts derive from private journalists’ or historians’ initiatives, though even these often draw on the law for their authority and as a constraint.

Historical accounts in periods of political transformation take diverse forms. The sources and forms that the transitional truths take vary: trials, truth commissions, official histories. The analysis here illuminates what may well be ever-present but which is vivified in periods of transition: “Each society has its regime of truth, its ’general politics’ of truth; that is, the types of discourse which it accepts and makes function as true.”9 The variety of truth regimes, truth’s contingency, is dramatically exemplified in the transitional context. The substance of the transitional truth regime depends on the nature of the predecessor’s truth regime and the extent to which there is critical transformation. Transitional histories’ justificatory epistemes define the direction of political transformation. It is through the framework of law, the language, procedures and vocabulary of justice, that this reconstruction is advanced. Below are explored instances of the construction of collective memory in transition.

Law’s History: Historical Justice and the Criminal Trial

Trials play the arch long-standing role in transitional history making. History operates as “judge” in the processes of criminal justice. So it is that in the contemporary debates over transitional justice, the issue is often framed as “punishment versus amnesty.” Punishment is identified with collective memory, and punishment’s waiver with collective amnesia.10

Consider the role of punishment in the pursuit of historical justice. Trials are long-standing ceremonial forms of collective history making. But beyond this, trials are the primary way of processing events in controversy.11 The ordinary criminal trial’s purposes are both to adjudicate individual responsibility and to establish the truth about an event in controversy. Though the importance of the truth’s purpose to the criminal trial varies among legal systems and cultures,12 in transitions, the trial’s role of settling historical controversies can not be gainsaid. As transitions are periods of political and relatedly historical conflict, after a regime’s change, successor trials are commonly held out as the primary means to establish a measure of historical justice. Also, successor trials are frequently used to establish historical accounts in political transitions; indeed, this is often their primary purpose. Through the trial, the pursuit of historical truth is embedded in a framework of accountability and in the pursuit of justice. In some respect, the use of trials to pursue a historical inquiry about events in controversy follows our intuitions about punishment’s epistemic function. Yet, transitional histories through the criminal trial transcend our intuitions of trials’ ordinary role in criminal accountability and yet are structured by the trial’s frame of vision. In this context, the accounting for the past affects and constructs a distinct view of historical justice. The transitional history cannot help but shape a particular account of a state’s controversial past.

In the criminal trial’s historical accounting, truth is produced along with justice and thus plays a role in the process of delegitimating the predecessor regime and, relatedly, in establishing the legitimacy of the successor regime. While military or political collapse may well succeed in bringing down repressive leadership, unless the repressive regime is not only defeated but also publicly discredited, its political ideology may well endure. Thus, the eighteenth-century debates over whether to bring King Louis XVI to justice were seen by Thomas Paine as an opportunity to establish the “truth” of the evil of monarchic rule: “When he the king is looked upon … as an accused man whose trial may lead all nations in the world to know and detest the disastrous system of monarchy and the plots and intrigues of their own courts, he ought to be tried.”13 Other leading successor trials, whether of the major war criminals at Nuremberg or of Argentina’s military junta, are today largely remembered not for their condemnation of particular individuals but, rather, for their role in creating a lasting record of state tyranny.

Successor criminal processes enable manifold historical representations of past evil legacies. Trials enable vivid representations of collective history through the recreation and dramatization of the criminal past in the trial proceedings. Further, this historical account is generally commemorated in a written transcript, often published. In the contemporary moment, the representational possibilities have been dramatically increased through the mass media and televised court proceedings, infusing popular culture. The written and other records of the trial and judgment are enduring representations.

How does the criminal form construct the truth?14 There is no one answer, because various aspects of the truth production result from varying features of the criminal process. For example, the criminal trial enables the establishment of a historical record at the highest legal standard of certainty; in Anglo-American jurisprudence, it is “truth beyond a reasonable doubt.”15 The leading example remains that of the Nuremberg trials and judgment. The evidence of atrocities at Nuremberg, mostly drawn from Germany’s own files, included 10,000 documents of decision making. There was a distinct preference for documentation as proof, for testimony was perceived to be political. In Chief Prosecutor Robert Jackson’s words, “We will not ask you to convict these men on the testimony of their foes.” The Trials of War Criminals Before the Nuremberg Military Tribunals constitutes a permanent record of Nazi persecution policy, still relied on by historians and others.16 In a more contemporary example, the 1983 trial of Argentina’s military junta enabled a public airing of the country’s past. The trials of the military junta, since Argentina’s legal system follows the largely nonadversarial, European-derived, nonpublic system of criminal procedures, were the first such trials in the country’s history to be conducted in a similarly public fashion. Through the junta trials, for the first time since the collapse of military rule, the terrible events of the military repression were aired openly to the public and to the media over an extended period. The truth of what happened was established by the testimony of victims and corroborated by international nongovernmental organizations, human rights groups, and foreign governments—all attesting to the brutality of the prior regime.17 Another successor trial, of former Central African Emperor Jean-Bedel Bokassa, was similarly notable for its representation of the past dictatorship. After a decade of repressive rule, Bokassa was overthrown by the French and put on trial for atrocities, including political massacres and even cannibalism. Through television and radio reports broadcast nationwide, the lengthy Bokassa trial created a vivid oral narrative of the brutality of his dictatorship.18 Ultimately, and despite a subsequent amnesty, nationwide reporting of the trial proceedings sought to ensure that the offenses of the Bokassa regime would not be relegated to oblivion. The force of trials in shaping collective memory is seen in the extent to which it is these records that frame long-lasting social constructions of knowledge in these periods.

The force of criminal justice in historical construction is perhaps best illustrated in the connection between World War II–related criminal proceedings and accounts of the period. Postwar historiography points to the ongoing import of prominent trials in framing and preserving historical understandings. The force of legal representations in the construction of the scholarly and popular historical understandings of wartime atrocities is evident in the course of historical understandings over time. Legal and historical understandings regarding the nature of persecution developed in similar directions, pointing to the force of law in historical construction in transitional periods. The initial historical understanding of the Nazi persecution coincides with legal understandings of responsibility constructed at the postwar trials. Understandings of responsibility for wartime persecution began by concentrating on the individual at the top echelons of power. (It then would move toward a view of responsibility as more diffuse and pervasive.) Accordingly, at Nuremberg, the greatest crime is deemed the waging of “aggressive war”; and those put on trial are its military leaders. As the first trials targeted the top German military echelon, so, too, the then-prevailing historical school characterized responsibility for wartime persecution as extending from the top-down. The “intentionalist” school interpreted Nazi policy as Hitler-dominated; therefore, responsibility for wartime atrocities was attributed to the top Nazi echelon.

With time came a more nuanced legal understanding of responsibility, which went hand in hand with changes in the historical understanding. After Nuremberg, the Allied Control Council No. 10 trials witnessed a construction of accountability that shifted the burden of responsibility for war crimes from the top military rung to Germany’s civilian elite. Historical interpretations in this period moved from the “intentionalist school,” which viewed responsibility as concentrated (chiefly in one person) to the “functionalist school,” which viewed responsibility as pervasive and diffused throughout all sectors of German society as throughout other countries.19 Lower-level trials correspond to the change in understanding of responsibility. The convening of the Eichmann trial coincides with Raul Hilberg’s The Destruction of the European Jews (1961). In subsequent decades, the net of prosecutions has expanded to include collaborators as well as those at lower echelons of power. Wartime collaborators were tried in the countries of what had been occupied Europe, notably the Netherlands and France. Leading examples of such prosecutions are the trials in France of Klaus Barbie in 1987 and of Paul Touvier and Maurice Papon in the 1990s. Legal proceedings taking place in the United States, England, Scotland, and Australia arose out of these states’ granting of safe haven to persecutors at the war’s end.20

Whereas trials are often thought inapt for adequate historical representation because criminal justice appears to offer a narrow individual accountability,21 and accounting for modern persecution clearly transcends the individual case, contemporary transitional justice mediates antinomies of the individual and the collective through constructs in the law of motive and policy. In these instances, the interaction of legal and historical constructions of responsibility supports a complex view of wrongdoing as perpetrated by individuals within a changing society. These legal developments coincide with an increase in theorizing about the increasingly dense obligations of humanitarian intervention, again raising ultimate questions about moral and legal responsibility for atrocities. Whether this is a case of law shaping history or of history shaping law, what is evident is the overall dynamic—that juridical and historical understandings have moved in similar directions over time. At the century’s end, there is a mounting sense that responsibility for modern persecution derives from individual agency against a background of systemic policy. The historical understanding keeps changing in the light of present frameworks. Thus, the historical legacy of the postwar trials and its precedential meaning is also ever-changing. The view that Germany’s trials were intended to establish individual responsibility for war crimes has given way to a more complex understanding of human rights abuses.

In the modern rule-of-law state, trials are traditional ceremonies affording a ritual to publicly contextualize and share past experience of wrongdoing. In transitions, trials play an even more significant role as they are well suited to the representation of histories in controversy, common in periods of radical flux. Yet, these rituals involving contested histories of the individual case often break down in the face of the massive systemic atrocities that characterize the repression of the modern state.

The Dilemma of Political Justice

Instances of successor trials show that in their transitional form, trials are able to frame broad understandings of responsibility. Thus, though trials are commonly thought to emphasize individual agency in wrongdoing, transitional trials’ accounts mediate between understandings of individual and collective responsibility. Despite successor trials’ promise for establishing a historical record of states’ evil legacies, the trial’s uses for such purposes also presents a challenge to the rule of law. Troubling dilemmas arise whenever a punishment policy is undertaken chiefly to establish a historical record, whenever the primary purposes of transitional punishment are external to those ordinarily associated with the criminal justice system. Contemporary illustrations are the uses of post-Communist trials, such as those concerning 1956 Hungary, to shed light on previously obscured historical junctures. The trials run the risk of being perceived as political justice. Public history making through the criminal law raises the specter of sacrificing individual rights to the societal interest in establishing a historical record. An extreme case would be the trial of an innocent person to make a historical point. Such overt political uses of trials would simply amount to a “show trial.” When emerging democracies turn to trials for historical justice, they risk its politicization—and the appearance that nothing has changed.

Even when trials are intended to advance liberalizing change and adhere scrupulously to due process, once set in motion, their impact is often not easily controlled. The direction of the historical rendition through the trial can not be known in advance, since at least in the adversarial legal system the proceedings involve explicitly competing historical accounts: Historical trials may backfire and, rather than express the normative liberalizing messages, end up subverting their democracy-building purpose. A notorious example is the case of Adolf Eichmann in Jerusalem. In bringing Eichmann to trial in 1961, the Israeli government intended to make vividly present the history of the Holocaust for the first Israeli-born generation. Despite the state’s attempt to create a vivid historical account of Eichmann’s responsibility, the trial could not help but trigger other, more controversial historical interpretations, such as that of supposed collaborator responsibility attributable to sectors of the organized Jewish community, recounted by Hannah Arendt in Eichmann in Jerusalem: A Report on the Banality of Evil.22 Similarly, in 1988, when France brought Klaus Barbie, the “Butcher of Lyons,” to trial, the public expectation was that the trial would enable a revisiting of the history of occupied France. And, indeed, much of the trial did enable a dramatization of wartime history. Private parties, including more than thirty victims and resistance and communist groups, joined the prosecution and used the trial as a vehicle to tell their version of the occupation. So-called general witnesses testified not to particular incidents in controversy, as in an ordinary trial but, rather, to their interpretations of war-related history, giving rise to the perception that the trial’s aim was primarily to help unify France’s divided political identity. Ultimately, the trial did have an impact on French wartime historical understanding but, as with the Eichmann trial, not necessarily that which was intended. Barbie’s defense to charges of crimes against humanity was to countercharge France with war crimes in Algiers, leading some to say that what began as a trial about collaboration in Nazi persecution culminated in the worst sort of comparative genocide. Even the private-party testimony seemed to support a universalist view of wartime persecution popular among the French left. Ultimately, the historical account elaborated in the Barbie trial appeared to subvert the state’s broader political purposes in favor of a narrower partisan message.23

These instances reveal the potential for politicization in the use of trials to construct transitional historical understanding. The problem is responding to crimes perpetrated in a political context through juridical means that are explicitly designed to establish one official account in a sea of contested histories. This limitation has tended to work against the use of trials for historical production. As previously discussed, the typical response is a somewhat limited criminal process that fails to fully individuate responsibility but that, nevertheless, establishes a public record. The “limited” criminal sanction advances investigation and documentation purposes, as it implies a formal criminal investigation by a presumably neutral judiciary at the highest legal of evidentiary standards in the law. Even when there is little or no attribution of individual responsibility, the limited sanction can, nevertheless, advance a historical record and the construction of public shareable knowledge about past repression. The limited sanction advances the criminal law’s epistemic purposes. Moreover, where constructed in the juridical context, knowledge can be liberating: when the trials symbolically isolate individual wrongdoing, the larger society is redeemed.

Disappearance and Representation

Repressive periods are commonly seen as gaps in a state’s historical time; the sense of such a break was most pronounced in Latin America following military rule and the continent-wide policy of disappearance. Transitions in the Americas followed decades of military dictatorship and brutal repression, involving widespread abductions, detention, torture, and disappearances, all carried out in the name of “national security” and in absolute secrecy. Revelations about the past that emerged in the transition reveal the depths of a state’s criminality whose very hallmark is “impunity.” Though Latin American disappearances appear to redefine impunity, the disappearance policies—for example, of Argentina—built on the World War II Fascist “night and fog” policy of detaining and secreting away victims “without a trace,” implemented by the National Socialists to destroy their political enemies and to instill terror in the population.

Consider what it means if the victim’s body in a crime disappears—perhaps the crime never happened? Disappearances meant the ultimate evidence of the crime, the victim’s body, was missing.24 Michel Foucault conceived of “the body [as] … directly involved in a political field; power relations have an immediate hold upon it; they invest it, mark it, train it, torture it.”25 Adding to these forms of social control, the repression in 1970s Latin America revealed a singularly coercive state power—to make the body disappear, making citizens vanish, rendering them desaparecidos. During Argentina’s military rule, more than 10,000 persons were abducted, detained, and tortured, vanishing without a trace. Like the secrecy of the abduction and detention, the victim’s ultimate disappearance is endemic to the “impunity crime.” Every step of the military’s process—kidnapping, detention, and torture, culminating in murder—is denied by the disappearances. As long as citizens remain disappeared, the military has triumphed, preserving its power hold. The disappearance of the citizen displays a perversely cruel and absolute sovereignty.

When freedom returned, in a striking response, in the undoing associated with transition, the disappeared victims became the symbols of the dictatorship. The disappeared were the hapless victims; disappeared, too, was the body politic that had seemingly vanished in the vise of military repression; and disappeared was the state that had ceased to be. It was in the nature of the disappearance that the crime was indeterminate. Should the state fail to explain the victims’ fates and whereabouts, was the wrong potentially ongoing and never ending? Thus, it was the disappearances that squarely raised the question of ongoing liability for the successor regime. At stake was an agonizing choice between justice and impunity, between punishing the military or seemingly endlessly reliving the past. Would the fragile balance of power and inability to punish the military mean depriving victims and survivors of any criminal investigation of their cases? Would failure to punish be tantamount to not even knowing the wrongs committed under the prior regime and to the state’s continuing complicity in the perpetration of the disappearance policy?

The agonizing question confronted by countries moving away from brutal rule was how to deal with the historical gap implied by the state impunity that characterizes repressive rule in modern times. How to respond to the gap created by disappearance policy? How to establish what happened to the massive numbers of disappeared and dead characteristic of administrative murder and the modern security apparatus, and how to report such atrocities? The limited use of trials suggested that the sheer magnitude of the wrongs defies the capacity of the criminal justice system. By the same token, the popular response to the disappearances indicates the development of a new form: the bureaucratic response to bureaucratic murder.

How to establish the crime of “impunity”? How to prove what happened under repressive rule, when disappearances meant vanished victims, terrorized witnesses, and complete governmental cover-up? The problem of proof leads to the advent of the so-called truth commissions.26 The scope of a truth commission’s investigation lends itself to establishing the facts of bureaucratic mass murder, with its overwhelming scale of violence, of incidents often numbering in the tens of thousands. The commission of inquiry thus emerges as the leading mechanism elaborated to cope with the evil of the modern repressive state, since bureaucratic murder calls for its institutional counterpart, a response that can capture massive and systemic persecution policy.

When the survivors and representatives of the disappeared demanded that the successor regime disclose the truth about what happened under junta rule, their demand spurred the creation of a commission of inquiry. The mandate of the National Commission on the Disappeared (CONADEP) was to establish the truth about the fate of the disappeared and the repression, leaving open the question of what remedies might follow. Though victims’ groups had petitioned for a governmental commission, the CONADEP was a political compromise, only semigovernmental. Lacking criminal powers, the commission was more a fact-finding than an investigatory body; its mandate was to report what happened under military rule. After nine months, a voluminous report identified the disappeared, who were presumed dead, and documented the systematic nature of junta repression. Though the report named the disappeared, controversially, it failed to name the perpetrators. Responsibility was attributed, however, to the various branches of the military junta, and this attribution of responsibility later became the basis of criminal proceedings brought against the military commanders.27

Truth commissions as a response to past military persecution spread quickly to other countries. Wherever states made delicate transitions out of brutal military rule and eschewed the prior regime’s punishment, the burning question was whether past wrongs would simply be forgotten. The truth commission emerged as impunity’s antidote and amnesty’s analogue. Throughout the Americas—in Argentina, Chile, El Salvador, Honduras, Haiti, and Guatemala—wherever the violence was massive in relation to the population, making dim the possibility of criminal retribution, the truth commission became a central mechanism of political transition.28 As it sought to implement liberalizing political change in Chile, the successor regime’s response to prior repressive military rule was the historical inquiry of the National Commission on Truth and Reconciliation.29 The investigation, confined to establishing the facts about those lost in the military’s disappearance policy, concluded that the policy affected thousands of citizens. When the bloody civil war ended in El Salvador, after about a decade, with 75,000 killed and thousands displaced, the final peace accords stipulated the creation of an international “truth commission” to investigate past abuses. Emerging after protracted conflict, and a creation of the peace accords, the commission’s mandate was to document “serious abuses” committed by both pro- and anti-government forces throughout the prolonged civil war.30 For the first time since the post–World War II transitions, impartial investigation of a nation’s abuses would be carried out by an outside international body. Similarly, the truce in Guatemala, following a thirty-six-year war, which had resulted in the deaths and disappearance of hundreds of thousands of people, was established on the promise of establishing the truth.31 The Commission on Historical Clarification found sustained racial persecution and even genocide. In Honduras, after more than a decade of disappearances, a Commission for the Protection of Human Rights was established in 1992 to investigate. The commission’s 1994 report made findings of close to two hundred cases of disappearances and named several members of the army high command as perpetrators.32 In Haiti, the National Commission on Truth and Justice was created in 1995 to establish the truth about the most serious violations of human rights perpetrated between 1991 and 1994 domestically and abroad and to help in the reconciliation of all Haitians.33

As in the Americas, in Africa, after repressive rule, in the context of fragile fledgling democracies, commissions were created in Uganda, Chad, and postapartheid South Africa.34 Uganda created an investigatory commission in 1986, after more than two decades of brutality under the despotic Idi Amin and Milton Obote regimes, which took the lives of close to one million people. Affinities in historical and criminal accountability appear in the truth commissions’ meticulous investigation and documentation of contested incidents, as well as in the extent to which the reports attribute individual responsibility. Thus, in Chad, after the 1990 overthrow of the Habré regime, under the advice of international organizations, a commission of inquiry was appointed to investigate and report on the atrocities committed during prior rule. It concluded that about 40,000 people had been tortured and executed by the Habré security apparatus. The documentary report approximated the recording and stigmatizing impact of the criminal sanction: Individual offenders were identified, and perpetrators’ photographs were even included in the report.35

The turn to administrative inquiries in lieu of punishment was also true of postapartheid South Africa. South Africa’s Truth and Reconciliation Commission’s inquiries into apartheid were agreed to pursuant to the determination to pursue a nonretributive policy. Amnesties were to be exchanged for cooperation in the truth commission processes.36 The multivolume report of the Commission on Truth and Reconcilation addresses “the commission of gross violations of human rights on all sides of the conflict,” as well as the larger history and institutional and social structures of the apartheid system. In a highly divided society, the truth was to establish a basis for reconciliation.

When political impetus for an official investigation was lacking, the construction of collective memory and the investigation and documentation of past repression were taken up by the civil society’s nongovernmental organizations, such as churches. The community that suffered perhaps the greatest number of unsolved disappearances on the continent was the Mayan community of Guatemala. Before the end of the three-decade-old war, the task of investigation was taken up by a church organization, the REHMI Oficina de Derechos Humanos del Arzobispado (Archbishop Office of Human Rights, or ODHA). Its unofficial report, with the mandate to pursue the “restoration of historical memory” based on victims’ confessions, was to be integrated in the official report that appeared likely as a result of the settling of the war.37 These unofficial findings of racial persecutions would rock the country, only to be subsequently confirmed by the official report, “The Memory of Silence.” Likewise, elsewhere on the continent in countries where military rule ended without clear political transition, as in Brazil, or following difficult negotiations, as in Uruguay, governmental investigation was out of the question. In Brazil, investigating past wrongs was left to courageous clergy members, who wrote a report entitled Never Again, based on files secretly removed from military control. To this day, the clergy report remains a rare record of the 1970s Brazilian military repression and has been disseminated throughout the country.38 Though Brazil and Uruguay’s truth-tellings were unofficial, they emulate official accounts on the continent, such as Argentina’s, conveying how even private reporting will be perceived as social truth so long as it follows the authoritative transitional form. Both the Brazil and Uruguay reports appropriate the features of the official governmental report. Entitled Nunca Más, or Never Again, both reports expressly follow Argentina’s first such report: in title, organization, scope of mandate to investigate what happened during prior rule, and sources of evidence, deriving from official governmental sources. In this way, even unofficial reports can be said to construct an “official” truth. Brazil’s report, drawn entirely from the government’s own files, though not a trial record, amounted to a de facto confession of state wrongdoing, indeed, one extracted by Brazil’s leading clergy members. And, because the Uruguayan repression was characterized by unlawful incarceration and torture (rather than executions), there were survivors, so that former prisoners had the potential of giving testimony as direct evidence in the historical record.39 By their very names—Nunca Más in Spanish is translated as “Never Again”—the Latin American truth reports offer the promise of deterrence of future criminal wrongdoing, generally considered the province of punishment.40 Deterrence of prospective wrongdoing is commonly a primary justification for punishment; yet, in transitions such rule of law concerns are thought to be advanced by alternative means—administrative inquiries. The popularity of such investigations in countries forgoing criminal justice points to continuities in the criminal and administrative forms in transition.

A Truth Commissioned: The Epistemology of the Official Truth

Consider what the transitional inquiries might tell us about how the official truth is produced. The advent of the truth commission—not quite a traditional trial, but a quasi-official investigation—challenges our intuitions about the nature and form of historical justice. As is elaborated further on, the epistemology of the transitional truth is closely tied to the truth commission’s administrative structure, powers, and processes. Public knowledge about the past is produced through elaborate processes of representation by perpetrators, victims, and the broader society, grounding the historical inquiry with a basis for social consensus. It is a truth that is publicly arrived at and legitimated in nonadversarial processes that link up historical judgment with potential consensus. The truth commission mandates emerged as principled compromises on the transitional justice issue of “punishment or impunity.” Like prosecution, the semigovernmental commissions are delegated powers by the executive, ordinarily the source of prosecutorial power. While some truth commissions have broader investigative powers, such as subpoena power—for example, South Africa’s Commission for Truth and Reconciliation—none has full judicial powers. The construction of a plausible public truth depends on other ratifying processes outside the government and emanating from the people. Transitional truth that is socially acceptable is produced within a newly democratic structure drawing from two sorts of narrators: the people and a representative elite. Truth commissioners tend to be prominent citizens chosen for their integrity, a moral elite. Moreover, as a body, the commission is also expected to be politically balanced and neutral. The question of neutrality is particularly important in transitions following civil war; thus, for example, the problem of political neutrality posed in post–civil war El Salvador led to a commission comprised of non-Salvadorans, foreigners outside the polarized state. The same was largely true of Guatemala’s Historical Clarification Commission. The recurring image is of the truth as somehow impartial, and therefore foreign.41

What constitutes “the official story”? If the commissioners offer the moral authority of voices of political dispassion and neutrality, victims conversely offer the moral authority of the impassioned voices, of those who suffered state horror firsthand and up close. The victims of prior oppression are the historical inquiry’s primary source of evidence, the stewards of the nation’s newfound history. Truth commissions depend on victims’ testimony, and it is fulsome, as unlike a trial, lacking in challenging confrontation or cross-examination. Those who previously suffered most at the hands of the state become its most credible witnesses and authoritative voices. When the victims’ testimony is narrated by the commissioners’ quasi-state authors, it becomes a shareable truth, a national story, and the basis of transitional consensus.

Social knowledge of the past is constructed through public processes. These proceedings generate a democratizing truth that helps construct a sense of societal consensus. The processes are also performative: they assume a profoundly critical and transformative aesthetic—a ritual that inverts the prior repression’s knowledge policy. While impunity reigned under repressive rule and the military regimes were known for their cover-ups, by contrast, successor regimes are known for their due process. The right to a hearing, a traditional part of governmental administrative procedures, publicly affirms rights to political participation and individual dignity. The administrative inquiry depends on citizens’ participation—encouraged by the state through strong incentives, such as victims’ reparations and perpetrators’ immunity. South Africa offers an example of incentive structure implicit in the administrative commission’s dependence on testimonies and confessions conditioned on reparations and amnesties. Further, beyond these incentives, the process of testifying is itself thought to be cathartic. If the predecessor regime failed to protect its citizens from violations of their security, under liberalizing rule, the opportunity for a governmental hearing goes some way to restoring a small part of the prior dignitary harm. The impact of victims’ testimony is heightened when the truth commissions’ hearings are held at public sites of prior persecution. This public process also goes some way to legitimating the new regime. Those previously tortured and silenced now speak openly about their experiences under the repression.42 Survivors’ stories are compared and patterns of systematic abuses revealed. Together with other evidence, these stories make up the official truth. Testimony of victims and other witnesses is deftly reconstructed by commissioners into a unified story of state repression. The official truth reports constitute a distinctive form of narrative, and so it is not surprising that the chairs of the truth commissions are often leading authors, such as Ernesto Sábato, the chair of Argentina’s landmark CONADEP.

Transitional truth inquiries are mandated to establish “what happened” under prior evil rule. Truth commission practices suggest adherence to a principle of documentation. The truth reports follow the literal style of official documentation. Consider by what standard of certainty the “official truth” is known. American law emphasizes standards of proof as the defining characteristic distinguishing criminal and civil fact-finding. Yet, this notion of varying standards of proof and accounts seems odd from the vantage point of truth in other legal cultures. Thus, the truth in continental systems, by contrast, is a commonly unitary understanding transcending the particular legal proceeding.43 The transitional truth commissions’ hybrids of civil and criminal inquiry have attempted to forge a similar unitary approach to the “truth.” Most commissions elide the question of the appropriate evidentiary standard. When the question was addressed by El Salvador’s truth commission, it drew on the two-source rule, the evidentiary standard generally employed by historians and journalists. The minimum evidentiary standard, “sufficient evidence,” corresponded to a preponderance of the evidence, necessitating more than one source.44

The truth reports are not generalized accounts but detailed documentary records. The reports are a sea of details: they document the disappearance by the street where the abduction occurred, the name of the detention center, the nicknames of the torturers, the names of co-inmates, and the names of the witnesses who testified.45 Every detail is recounted in bare fashion without literary license. In plain, matter-of-fact language, the unbelievable is made believable. The greater the detail, the stronger the counterweight to prior state silence. The more precise the documentation, the less is left to interpretation and even to denial. What is seen throughout transitional histories is that the official truth must be known with precision. To know precisely is to close the gap on past events that by their very horror and state sponsorship would otherwise be disbelieved and forgotten. The official truth of state atrocities must, therefore, be established by meticulous documentation, and the paradigm of official representation of the state atrocity is the literal account. Rituals of accountability invert the practices of disappearances, dispelling the policies of “night and fog.” The literal account responds to and limits the possibility of competing narratives. The “report” has become the dominant way to chronicle stories of human rights abuses and atrocities. What style there is might best be described as juridical.46

The Politics of Memory: Linking Historical to Political Regimes

My dreams are like your vigils.
Jorge Luis Borges, A Personal Anthology

Making the truth “official” presumes a degree of democratic consensus; yet, in transition, democratic processes are often not fully consolidated, with implications for the authority and legitimacy of transitional production of knowledge. In transitional truth-telling, accordingly, there is a concerted attempt to make historical and political accountability converge. Transitional truth regimes are not autonomous but, rather, inextricably related to particular processes of creating knowledge, as well as to prior historical narratives. Consensus on the history produced is predicated on the truth’s dissemination and acceptance in the public sphere. From where does the official truth derive its power? Legal processes of presentment and ratification display the stuff of authority and its legitimation in newly democratized processes. Once completed, truth reports are presented back to the governmental actor delegating the commission its powers, generally the country’s executive.47 This dissemination was the sequence in Chile; for example, following the Rettig Commission’s presentment to the president, the report was presented to the country.48 An analogous process occurred in the Salvadoran international commission’s presentment to the United Nations.49

Public rituals of accountability are often accompanied by governmental apology. Thus, for example, in postmilitary Chile, the president publicly presented the truth commission report’s key findings to the country, in a large sports stadium. The very same stadium had been the site of state arrests and torture, illustrating once again that the critical rituals are inversions—cooptations of the predecessor rituals of repression—which in the reenactment are infused with new meaning. In his presentment, President Patricio Aylwin declared the disappearances “executions” by “agents of the State,” formally recognized state accountability and called for a societal apology.50 President Aylwin “assume[d] the representation of the nation in order to, in its name, acknowledge accountability to the relatives of the victims.”51 The transitional apology offered a public rehabilitation to victims, whose reputations had been attacked under the prior regime, which had defamed them as “enemies of the state.” These representations had societal consequences more profound than those associated with ordinary defamation, underscoring affinities in historical and reparatory justice. While by the executive apology the president assumed representative responsibility to victims on the nation’s behalf, he also affirmed the need for “gestures of recognition of the suffering” throughout the nation.

Public representation of the truth, through executive presentment, offers nuanced expressions of transitional political accountability and a striking illustration of the dilemma of successor responsibility in the transition. When the new truth regime is presented and the successor regime’s representative apologizes to the people on the nation’s behalf for acts committed under the predecessor regime, what is implied is a certain continuity of the state and of the rule of law. The transitional apology allows for the continuity of state responsibility, even as it also affords discontinuity—a letting go of the past. Of course, official apologies play a role in acknowledgment of governmental wrongdoing. Executive apologies enable formal governmental acknowledgment of wrongdoing, particularly in the sphere of international relations.52 While this has been common practice at the level of states, transitional experiences show the extension of these practices internally of successor governments vis-à-vis their citizens. As the culmination of the truth-telling, transitional apologies do added work, related to constructing the shift in political regimes.

If the truth commissions’ mandate is to establish what happened during past rule, fulfilling this mandate goes beyond amassing the facts. For what is at stake is a contested national history. Accordingly, truth commissions, like successor trials, are a forum of public historical accountability regarding contested traumatic events, for transitions imply a displacement, or substitution, of truth regimes. In the shifts out of military rule, the pivotal contested truth goes to the very characterization of the violence of prior rule. In the standard military account, the violence perpetrated was “war,” the disappeared were “guerillas,” and repression was justified as the “war against subversion.” It is to these representations that transitional truth reports explicitly respond, substituting successors’ truth for the account of the prior regimes.53 Transforming predecessor representations of state action is enabled through the devices of what might be termed “categorization” and “emplotment” in the new successor narratives. Categorization and emplotment are devices deployed in transitional narratives to recast and restructure the state’s legitimating stories that justified its past. Constructing past state action as illegitimate requires reporting facts in ways highlighting the relevant distinctions, through the use of parallel or juxtaposed categories, in and against the context of the past repressive rule. For example, Chile’s report is structured by categories of state action, distinguishing between victims of “political violence” and “human rights violations.”54 Representations of perpetrators’ and victims’ status and actions constitute the elements for reconstructing the prior representations of the wrongdoing. What happened under previous rule is represented in changed categories of violence. Beyond the newfound facts is the renegotiation of the representational language of political violence: “armed conflict,” “insurrection,” “political terrorism,” “crimes against humanity,” and “genocide.” Historical transformation occurs through the explicit re-presentation involving recategorization of the facts in controversy—in particular, the nature of and the justification for the predecessor’s political violence. Thus, for example, in the transitions out of military rule, the critical truths are those that strike at the heart of the national security state and its doctrine. Successor reports offer critical responses to predecessor military regimes’ claims in asserting that governmental brutalities were not justified by national security doctrine in the so-called wars against subversion, that those killed were not political terrorists but ordinary citizens, and that disappearances were not justified by reasons of security. When Argentina’s Nunca Más report concludes by soberly observing that fully one-fifth of the disappeared were students,55 victims categorized as “unarmed civilians,” these representations constitute a critical revisionism forcing change, or transition, in the truth regimes. Such representations strike at the heart of the prior regime’s justification of political violence. For this reason, successor reports are largely devoted to identifying and categorizing victims systematically, with grave implications for the prior regime. Establishing that victims were unarmed civilians, and not combatants, both refutes the predecessor truth regime of the military’s claim of a war against terrorism and accordingly establishes that what happened under prior rule was systematic state-sponsored persecution.

But the attempt to redraw the line of justifiable political violence is a delicate enterprise, the risks of politicization many, and the line quite thin, particularly so when the attempt is to distinguish between political and human rights violence and when by way of juxtaposition within the same inquiry and report that attempt means the risk of juridical and moral equivalence. The truth regime that supports peace, the rule of law, and the political aims of the successor is not always historically just and hence may be unstable and short lived. It is a truth for a particular politics.

This tension implicit in guarding historical transition, while in entrenching a transformed understanding of past violence, is seen in the post–civil war transitions, in which historical accountability takes a distinct form: Settlements, negotiated after civil war–like conflicts, rely on historical accountings to advance the concededly political purposes of reconciliation. Bringing these conflicts to an end often depends on express commitments to bilateral historical investigations, involving bipartisan representations of violence. Accordingly, post–civil war commissions are often charged with mandates to create a unitary historical account jointly representing both sides in the civil war. The political agreement is to a historical representation of shared responsibility, though the role of the state is dominant. It is these accounts that make most clear the relation the truth regime bears to the political regime.

There are numerous illustrations of recent negotiated agreements ending conflict throughout Central America and Africa. Civil wars in El Salvador and Guatemala ended with agreements to a bilateral inquiry into regime and opposition violence culminating in a unitary report.56 Following civil war, the truth commission’s conciliatory purposes were central to transition. In contemporary post–civil war transitions, a twofold official inquiry report comprehending military and opposition violence offers a form of historically based reconciliation. Thus, in El Salvador’s truth report, the account of the country’s civil war is characterized in terms of “serious acts of violence” structured formally in parallel sections, entitled: “Violence against Opponents by Agents of the State,” and “Violence against Opponents by the Frente Farabundo Marti para La Liberación Nacional.” The balancing of state and opposition violence is effected through the use of paradigm or exemplary cases. Guatemala’s Report of the Commission for Historical Clarification refers to the country’s past as “fraternal confrontation” perpetrated by the state security forces and the insurgency.57 Given the toll of the civil wars in countries like El Salvador and Guatemala, the truth commissions’ mandate for reconciliation depended on limited investigation of exemplary cases—within both camps. Thus, two kinds of violence, state and opposition, are juxtaposed through parallel categories, parallel titles, exemplary cases, all comprehended within the covers of one truth report.58 A balanced history is told, a narrative commissioned in support of a political agreement.

A similar agreement became law in South Africa. Under the overarching rubric of apartheid, the South African truth commission’s mandate was to investigate the prior regime’s offenses, together with those of nonstate actors.59 A question of moral equivalence is raised by South Africa’s Report of the Truth and Reconciliation Commission. The focus of volume 2 is on perpetrators. While the report begins with the exposition of the role of the state, immediately juxtaposed against this part is a discussion of the “Liberation Movements” and their role in abuses. Moreover, an even more complex equivalence occurs in the truth processes. Perpetrators and victims are generally characterized as equals; perpetrators are analogized to victims and, hence, on a par:

The wicked and the innocent have often both been victims…. The families of those unlawfully tortured, maimed or traumatised become more empowered to discover the truth, the perpetrators become exposed to opportunities to obtain relief from the burden of a guilt. The country begins the long and necessary process of healing the wounds of the past….”60

The ethical and political implications of this sort of transitional narrative are exemplified in Hannah Arendt’s “Report” of the major Nazi trial in Israel.61 Arendt’s so-called trial report is an instance of relentless normative argument through juxtaposition, most saliently, of Adolf Eichmann’s responsibility as perpetrator against that of his victims. Indeed, it is this juxtaposition within the same account, of Eichmann’s bureaucratic role against that of his victims that is thought supportive of Arendt’s central claim of the “banality” of evil.

The risk of the politicization of transitional historical justice is illustrated in the transitional truth reports. Whenever peace agreements precommit to conjoining the investigation of state—with other—violence, a commission’s agreement to a particular account seemingly runs the risk of being history’s version of a “show” trial. The question that arises is, to what extent does the preceding political agreement constrain the independence and even predetermine the historical inquiry? Political representations run along a spectrum of continuity and discontinuity, with attendant implications for the perception of the possibility of liberalizing change. When the two sorts of violence are conjoined, the representation is one of continuity, of a seeming relativization of state wrongdoing, of the equation of the official repressive apparatus with the political opposition. The joint process of investigating and reporting the dual violence of government and opposition leads to the juxtaposition of the acts of state and nonstate actors in parallel categories and introduces a controversial comparison: Apposition of both sorts of violence in one document, through the uses of parallel categories and exemplary cases, apparently constructs symmetric representations and even an equation of evils—a moral equivalence.

The transitional narratives can be structured or “emplotted” in a variety of ways so as to tell multiple stories. For example, the question is partly how broad should be the historical lens brought to bear on the relevant inquiry. Against a historical context that is longstanding, rather than immediate, the story told is one of cyclical violence. When the historical accounting is organized in ways that revive preexisting historical categories and judgments, the nature and causes of the violence appear overdetermined and not to admit of change.62

The transitional commissions can also constitute other normative truth regimes that are radically transformative. When the successor regime’s truth report presents the prior repression in categories that explicitly respond to the prior regime’s own accounts, this representation advances a “critical” response. Transformative successor counteraccounts depend on the deployment of juridical categories responding to those of the predecessor truth regimes. The response to and refutation of the predecessor account of the repression provides a form of historical accountability. Such historical accountability is enabled by principles of documentation, representation, and entrenchment of a successor account. Transforming the prior categorization, the reports seek to expose the nature of the state’s wrongdoing. What the truth commissions’ painstaking documentation achieves—seemingly against all odds—is an authoritative counteraccount. Affinities emerge between historical and criminal justice: Just as a trial concludes with the determination of the veracity of one version of a contested event, so, too, the transitional truth inquiries culminate with a similar determination.

Truth or Justice: Truth as Prelude to Justice?

Consider the role of historical narratives produced in periods of political transformation. To what extent are the transitional truth-tellings a form of justice? Or are they a prelude or an alternative to justice? To what extent is historical accountability a goal in itself in transition, as opposed to a means to another end? To what extent is the construction of truth performative, and to what extent instrumental? A key performative function of the construction of transitional truth is the display of “reconciliation,” as truth commission hearings bring victims and perpetrators together, through their testimonies, to participate in the state’s processes. Beyond victims’ testimony, commissions rely on perpetrators’ confessions. Indeed, this is particularly true when the goal is reconciliation. In bringing perpetrators and victims together to talk about their experiences, the truth commission inquiries constitute a reenactment and a shared testimonial about the past. When victims and perpetrators testify, there is a self-purging and the possibility of personal change regarding the past experience. Nevertheless, despite these processes’ cathartic function, there is the latent potential of conflict between victims’ and perpetrators’ needs and the interests of the state. Throughout transitions, victims have challenged amnesty laws for greater control and vindication of their “rights” to knowledge. Leading examples are the Mothers of the Plaza de Mayo in Argentina and the Biko family in South Africa.63

Beyond this potential conflict, truth sets in motion other consequences. Changes in interpretation offer justification for other political changes. Once a new truth regime is established, it has further consequences as it sets the standard for defining other claims. Accordingly, historical accountability sets off a dynamic in the transition. When there is a newly constructed response, it alters the political and legal landscape. Thus, “truth” is not an autonomous response; reconstructing critical facts is inextricably tied up in other societal practices. When the “truth” becomes known, when certain critical knowledge is publicly recognized, the shared knowledge often sets in motion other legal responses, such as sanctions against perpetrators, reparations for victims, and institutional changes.

In some countries, exploration of the past began under a mandate to explore an open-ended inquiry. Truth is seen by some as a precursor phase that leads to other legal processes, such as prosecution, whereas others see the truth inquiries as a fully independent alternative to other responses. Thus, for example, Nunca Más, Argentina’s report, was just the first stage in the country’s project of dealing with its past. Whereas, generally speaking, “truth commissions” do not reveal the names of individual offenders,64 in Argentina, wherever there was a suspicion of wrongdoing, the commission turned its list of names over to the courts, and the allegations would pave the way to individual trials. Revelations of past wrongdoing had further consequences, leading to convictions. The transitional role of official investigations as a first-step predicate to other remedies is analogous to ordinary times. Thus, for example, in Canada and Australia, historical inquiries to investigate those states’ World War II–related role culminated in criminal prosecutions. In their aftermath, events rarely stand still. Unless the truth inquiry is controlled a priori, it leads in diverse directions, to trials, other sanctions, victims’ remedies, and structural changes.

Truth or justice? Again, truth inquiries have in some countries been considered not a prelude but an alternative to punishment.65 In contexts in which punishment is not available or politically advisable, historical investigation processes have been advocated as alternatives to punishment. Thus, for example, in Chile, El Salvador, Guatemala, and South Africa, where retributive justice was eschewed, these tightly controlled inquiries, constrained from the start by government-asserted purposes of reconciliation appeared to serve some of the avowed state interests in pseudo-punishment. In the language of the Chilean Truth and Reconciliation Report, the truth itself constitutes a “moral conviction.”

There is often thought to be a trade-off between truth and justice. Yet, as the earlier discussion of criminal justice reflects, construction of public knowledge regarding repressive pasts takes varying forms, so that the choices between criminal and historical inquiries turn out hardly to present a choice between truth and justice. The question, instead, is what sort of “truth”?

The defining feature of truth regimes in transition relates to the extent of the successor societies’ tolerance for multiple representations of the “truth.” When transition is effected on the promise of the future reconciliation of a factionalized society, the attempt is to cohere around a shared historical account. Historical consensus is tightly linked to building political consensus. Thus, there is often an attempt to constrain other competing historical accounts, and incentives are offered for victims and perpetrators to participate in the official historical processes. Apologies offered and amnesties promised are used to control counteraccounts that might subvert the official account, which is illustrated in the contemporary inquiry in South Africa. Constraints that are put on alternative accounts of the past constitute a form of “gag rule.”66 Other sorts of gag rules regarding controversial state pasts appear in the transitional constitutions of these periods, discussed later in this chapter.

Truth is not synonymous with justice; neither is it independent of justice. Instead, it is better understood as a virtue of justice. So it is that there are affinities between historical and other transitional forms of accountability, all constructing various forms of collectively shared knowledge regarding the past. Transitional histories advance epistemic and expressive purposes associated with the criminal sanction. A further affinity between historical and criminal accountability is the attribution of individual responsibility for past wrongdoing. These affinities were evident in South Africa’s postapartheid Commission for Truth and Reconciliation, where historical testimonial processes were predicated on individual, case-by-case amnesties. As in a criminal scheme, the individual confessions bore the hallmarks of punishment, as there were individualized inquiries establishing wrongdoing, with findings made public in formal ritualized processes. Exposure of perpetrators’ offenses itself is an informal form of punishment, of “shaming,” subjecting perpetrators to social censure and ostracism. This form of sanction risks the possibility of limitless condemnation, ultimately threatening the rule of law.67

Another connection between historical and other forms of justice is that establishing past wrongdoing gives victims a form of reparation, as well as delineates a line between regimes. Telling the victim’s story sets the record “straight” on prior false allegations of political criminality, as, for example, in Latin American regimes, where many of the disappeared had been previously accused of subversion. A similar rehabilitation of reputation played an important role in Eastern Europe and Russia. Rehabilitation of political prisoners from the Stalin era, numbering in the thousands, continues to be an important, ongoing function of human rights organizations there, primarily in the work of Memorial, the organization established in the late 1980s to shed light on the political repression. Setting the record straight for victims occurs in a number of ways, through overturning of individual convictions, passage of legislation, presentment of truth reports in apologies, and publication of counteraccounts. What emerges is the pervasive corrective aim distinguishing transitional historical justice. Whether in making victims whole or in restoring peace and reconciliation to a divided society, the truth’s purpose in these cases is a story of eternal return.

Historical justice’s virtues display affinities with other forms of transitional justice in liberalization in its essentially corrective aim, evident in that many of the truth reports go on to make recommendations of a structural nature. For example, when El Salvador’s truth commission reported that responsibility for grave human rights abuses lay in the country’s military high command, it went on to recommend purges of that body.68 When repressive rule in many of the Latin American reports is attributed to the absence of an independent judiciary, strengthened judicial institutions are frequently recommended in the reports, as is deep change in the legal culture, particularly concerning human rights.69 The transitional pursuit of accountability often metamorphosizes into a more permanent institution, for example, Uganda’s truth commission, which led to a permanent human rights office to investigate abuses under the freely elected successor regime.70 Something similar happened in Chile, whose Truth and Reconciliation Commission led to the establishment of the National Chilean Corporation of Reparation and Reconciliation, which also deals with new cases.71

Finally, dissemination of the truth reports in successor societies attempts to transform public opinion regarding state tyranny. Truth reports generally reveal a high level of past societal acceptance of state terror. Societal acquiescence, particularly in the elite, reflects that rights abuses were an acceptable cost of increased control over the opposition; and, in part, it was this attitude that enabled the military’s repressive hold in the region.72 If punishment expresses what behavior a society is unwilling to tolerate, then many postmilitary societies lack consensus about the unacceptability and, more specifically, the criminality of the behavior of the dictatorship. Truth reports’ critical interpretation of the predecessor regime, as through prosecutions, can break the silence characterizing prior repressive rule. Societal tolerance for state repression may lessen over time.

Given the role of the truth commissions and attendant reports in transforming societal attitudes toward state repression, how then does this transformation enable historical justice in the sense of accountability? How does the official reports’ narrative style construct a sense of historical accountability? In what sense is this historical justice? Though transitional truth reports generally disclaim a role in judgment,73 such disclaimers can only refer to a narrow view of judgment. For the form of the truth inquiries and reports, formal rituals with their detailed indictments, share certain affinities with criminal indictments. The reports might be said to offer a form of judgment in that their account of history uses the language of law in responding to past individual rights violations. The historical accounting is written in legal language, in terms of status, rights, wrongs, duties, claims, and entitlements. When perpetrators are not individuated, as is often the case in the truth reports, the subject of the reports’ judgment is the society at large. This type of accounting is more comprehensive than that of the criminal justice system. At the very least, such truth accounts enable a broad sense of historical justice, if not in holding perpetrators accountable, in rehabilitating and vindicating victims. Within criminal justice, the accounting is, like adjudication itself, case by case, whereas the administrative inquiries have the advantage of focusing the historical lens more widely, better comprehending a state’s historical legacy, social structures, and policies, all relating to the question of responsibility for wrongdoing. Within a broader historical inquiry, perpetrators and victims are linked up again in the inquiry into the state’s persecutory policy.

Truth commission processes illuminate the historical response to a distinctive repressive rule and, more particularly, the relation of historical and political regimes. By offering critical responses to a predecessor regime’s historical, legal, and political representations of past repression, official truth reports provide a form of accountability in the transition and respond to and delimit the claim that all was political. In the truth commission processes, political truth is constructed all at once, demonstrating how change in truth regimes corresponds to change in political regimes. The express nature of the transitional historical forms and processes reveals the often instrumental, and significantly politicized, nature of these measures, politicized in the sense that the relevant truth is that public knowledge needed to advance the particular society’s transformation. In this perhaps most urgent of the transitional responses, a new story line is speedily produced; a “truth” is an overtly and explicitly political construction shaping the direction of the transition.

Let us return to the question with which the chapter begins: what is the nature and role of history in transitions? Transitions illuminate historical inquiry’s social frameworks. Although it is generally understood that present social and political frameworks affect the construction of collective memory,74 the ordinary relation does not pertain in transition. The construction of collective memory in times of radical transformation is distinguished by the sense in which the relevant framework is transitional. Official truth processes, such as the commissioned state histories, are expressly designed to advance a more democratic future. Here the histories’ transformative purpose, their forward-looking political role in national reconciliation and liberalization, is evident. The truth produced is a “workable” past for a changed future. Transitional histories perform the twin functions of discounting and of reappropriating what was repressed, even to the point of disappearance under prior rule. What remains is a performative narrative of liberalization. It is a story that is liberalizing in the context of the states’ political legacies.

Historical Justice in the Legacy of Totalitarianism

The fundamental pillar of the present totalitarian system is the existence of one central agent of all truth and all power, an institutionalized “rationale of history.”

In the post-totalitarian system, truth in the widest sense of the word has a very special import, one unknown in other contexts. In this system, truth plays a far greater (and, above all, a far different) role as a factor of power, or as an outright political force. How does the power of truth operate? How does truth as a factor of power work? How can its power—as power—be realized?

Václav Havel, Open Letters: Selected Writings, 1965–1990

Hegel remarks somewhere that all great world-historical facts and personages occur, as it were, twice. He has forgotten to add: the first time as tragedy, the second as farce.

Karl Marx, The Eighteenth Brumaire of Louis Bonaparte

The struggle of man against power is the struggle of memory against forgetting.

Milan Kundera, The Book of Laughter and Forgetting