Transitional Justice and the Arts: Reflections on the Field

Chapter 11
Transitional Justice and the Arts: Reflections on the Field

Sanja Bahun

On 19 September 2006, the former Director of General Investigations for the Police of Buenos Aires Province, Miguel Osvaldo Etchecolatz, addressed his concluding remarks of the accused to the judges of the Oral Court in the First Federal Court of La Plata, Drs. Horacio Isaurralde, Carlos Rozanski and Norberto Lorenzo. Standing still, defiant and unrepentant, Etchecolatz quoted his compatriot writer Jorge Luis Borges: ‘As Borges would say, you are not the judge. The Supreme Judge would judge us after death’. His voice resonated in the tense silence of the courtroom (Who Am I? The Lost Children of Argentina, dir. Estela Bravo, 2007) and it was these words that would be given prominence in the late evening and the next day editions of major Argentinean newspapers (e.g., La Nacion, 19 September 2006, online edition; Página 12, 20 September 2006, online edition).

Etchecolatz had already been tried for illegal arrest and torture in 1983, receiving a 23-year prison sentence, but was subsequently released under Argentina’s notorious amnesty laws. Triggered by the growing evidence of Etchecolatz’s direct involvement in the murder, torture and illegal deprivation of freedom of a group of ‘disappeared’ (los desaparecidos), his 2006 trial was the first public retrial of those amnestied since the repeal of the Full Stop Law (Ley de Punto Final) and Law of Due Obedience (Law of Obediencia Debida) by the Supreme Court of Argentina in June 2005, as well as the first in the series of penal cases delivered by the Juicio por la Verdad (Trial for Truth, established in 1998).1 Having heard his final remarks, the judges sojourned and returned to deliver an unprecedented sentence: Etchecolatz was imprisoned for life for what was legally defined, for the first time in Argentina, as crimes against humanity, committed under the framework of a systematic plan of extermination, or genocide.

Remarkably, Etchecolatz’s literary remarks struck neither the judges nor the audience as extraordinary on that September day. And they were not. Etchecolatz was simply using, or rather blatantly misappropriating, that inspiring and unsettling proximity between literature and law of which recent critical discussions, including those within the field of transitional justice, are more than aware. In his discussion of testimony provided before the South African Truth and Reconciliation Commission (TRC), Mark Sanders (2007) described the relationship between literature and law as one of ‘interdependence’ – where law, ‘in order to be law … engages, and engages with, cultural explanation, linguistic idiom, and even literary form’ (9). Yet Maria Aristedemou (2000) has insisted that this relationship is also oppositional: literature, she writes, presents a ‘site of struggle’ where the discourse of law as it manifests itself at a specific historical moment may be contested or confronted (10). More specifically to this case, however, Etchecolatz also invoked a figure that had had a close, if complicated, relationship with the military regime whose governance between 1976 and 1983 and the use of clandestine state terrorism for the kidnapping, torture and death of an estimated 30,000 people (Feitlowtiz 1998, ix) was under public and judicial scrutiny at this trial. Outspokenly ‘right-wing’, Borges had been known as an acquaintance (of indeterminate intimacy) and supporter of Jorge Rafael Videla.

In stark contrast to these dubitable credentials, the aged Borges, then émigré, also attended as a witness the 1985 junta trials. He gave a humanely outraged interview to Diario del Juicio, the ephemeral newspaper dedicated exclusively to covering the trial, and memorably described the experience of the session in his characteristically punctilious language in an essay entitled ‘Monday 22 July 1985’ (‘Lunes, 22 de Julio de 1985’), published in Clarín on 23 July 1985. In this expressive account of the trial, read by a vast number of Argentineans (assumedly also by Etchecolatz), an 85-year-old Borges made clear the parameters of both his own unorthodox ethical philosophy and his ultimate conviction in some inalienable rights and concomitant responsibilities: ‘Personally, I do not believe in free will. Neither do I believe in punishments or rewards. I do not believe in hell or heaven … However, to not judge and not condemn this crime would mean to foster impunity and to become, in a sense, an accomplice’ (Borges 2003: 315). This statement, deprived of the writer’s signature ironic tone, yet projecting a characteristically ‘Borgesian’ vision of the world, amounted to both a personal recognition of accountability and a more general statement on historical obligations of workers in culture. In a conspicuous contrast to the way in which his words would be used by Etchecolatz more than 20 years later, Borges acknowledges and reinforces the credibility of the court and the proceedings.

This constellation of events – of the 1970s, 1980s, and 2000s – in which mass violation of human rights, judiciary proceedings, and creative practice surprisingly converged, illuminates well the complex interaction of the arts and transitional justice and the multifaceted roles that art and art-related practices play in societies in transition. These roles, their meanings, and their heuristic values for the field of transitional justice are the subject of the present chapter.

Charting the Field

The label ‘transition’ is generally attached to societies that transit from a totalitarian regime, or conflict (where mass atrocities and violations of human rights have taken place), to a more pluralistic type of governance, and peaceful and just society. The questions of justice figure prominently in transitional periods, and they are integrally linked to the society’s dual effort to bring justice to the past through redistribution and recognition, and ensure the continued practice of fairness in the future. This is the field of transitional justice, an interdisciplinary area that, while reliant on the discipline of law, rightfully combines insights from a range of other disciplines such as history, psychology, economics, philosophy, sociology, linguistics, and, as this essay argues, the investigation of the arts. The operating paradigm of transitional justice is that any state in transition should engage in judicial and non-judicial activities (e.g., reparation, truth, institutional reform, demobilization, national consultation processes, and others) that would deliver justice for past crimes and establish a rule of law. In that spirit, according to the United Nation Secretary-General’s report, transitional justice refers to ‘the full set of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuse, in order to secure accountability, serve justice and achieve reconciliation’ (Annan 2004: 4). The UN has further highlighted that, in order to properly address the root-causes of conflict, or past political abuses in a society, it is necessary also to tackle violations of economic, social, and cultural rights (OHCHR 2009).

This view is reliant on an experientially supported assumption that culture – including art practices and art heritage – vitally contributes to building just societies.2 Indeed, the arts (literature, film, visual art, music, theatre, dance, architecture, and other art forms) present both a crucial catalyst mechanism and an important information and reparation tool to support societies in transition. Their actual functioning in a transitional context is, however, multifaceted: as I shall proceed to argue, the works of art play a complex role as both a decisive contributor to and impeder of socio-political recalibration of society.

There is evidence of swiftly growing interest in investigation in this area. In the past decade, arts-based approaches to peace-building have gained the attention of scholars and policy-makers, and to recognize the importance of this inquiry the International Peace Research Association established an Arts and Peace Commission in 2004. An active research-artistic platform in this area is the Peacebuilding and the Arts Program of Brandeis University, USA, whose initiatives include some projects dealing with countries in transition (Search for Common Ground 2012). Recent academic publications reflect a more specific interest in the interaction of the arts and transitional justice, where area-based inquiries dominate the field (Bell and Di Paolantonio 2009; Lenta 2010; Lipscomb 2010). In addition, some aspects, or modes, of the operation of art in transition have received significant critical attention, albeit without explicitly being linked to transitional justice mechanisms. In particular, the essential role of visual art in community-based rehabilitation programmes has been widely documented (e.g., Dokter 1998, Kalmanowitz and Lloyd 2005), and the successes of music and other performative arts in the realm of human and cultural rights have been extensively discussed (e.g., Cohen et al. 2010; Peddie 2011). On the other hand, memorial art and socially responsible place-based artistic practices in post-conflict societies have received renewed attention from scholars working in the interdisciplinary field of memory studies (e.g., Kwon 2004), and institutions like the International Coalition of Memorial Museums in Remembrance of Victims of State-perpetrated Crimes. These and other inquires and initiatives usually revolve around three focal points, art practices, artworks, and artists; one could add to these the tools and the material and symbolic instruments of art-making. Following on these discussions, one may also infer a few observable types of interaction between the arts and transitional justice: representational (representation of, and engagement with justice and injustice, trials, legal proceedings, punishments, and so on in art), memorial (the use of the arts to remember and commemorate), the intrinsic or adopted artistic underpinning of law and law-making practices in transitional societies, and regulation and protection of the arts by (international or domestic) law and law-enforcing practices in transitional societies.3

For all their insightfulness, discussions and initiatives in the field have often lacked closer engagement with the actual mechanisms and initiatives of transitional justice as they are being developed domestically and in international criminal law and as they impact the situation on the ground. In addition, because the meanings attached to art and art-based practices, resources and vicissitudes of art production differ in each transitional setting, the researchers have mostly been forced to focus on a single region or a single mode of artistic expression. In effect, such studies sometimes miss a wider picture that would enable them to see the art of their consideration interacting with other types of artistic practices in the same transitional context, and similar practices at other global transitional sites; their restricted scope limits their audience. Finally, in concentrating on the reparative aspects of art production, the arts and transitional justice studies so far have tended to sideline the discussion of the ways in which artistic practices could also hinder or obstruct transitional processes. Due to all these practical and hermeneutic conundrums, the discussions of the interaction between the arts and transitional justice have rarely ventured into interdisciplinary theoretical assessment and hermeneutic correlation of artistic practices in various transitional contexts. Born out of an awareness of the inchoate nature of the inquiry, shortage of methodological frameworks, and the poor dissemination of research outcomes, the following presents an attempt to identify and systematize a few dynamics pertaining to the arts and transitional justice, and to argue for the heightened relevance of their further investigation by both scholars and practitioners.

Operation of Art in Transitional Justice Context

Any inquiry into the operation of art in transitional justice context should probably start with the recognition that symbolic practices like art production are a means to express the nomos – that set social narratives and interactions that, according to Robert Cover (1992), locates and constitutes any legal system – and to give observable, emotionally compelling form to its demands (144–5). The arts thus establish a particular rapport with law and justice-related practices in society, a relationship that, as we have seen, is one of both interdependence and opposition, or, rather, suplementarity – for art may ‘draw attention to inequities committed by law’s exclusions’ (Thomas 1991: 537). A regular trial, and even a very comprehensively envisioned series of trials, can host only a limited number of victims, witnesses and perpetrators, and thereby its findings and the truths it exposes are by necessity limited. In transitional contexts, art practices provide important unofficial counterparts for truth-finding, but also reconciliation, civic repair and psychological reparation, lustration, public apology and other mechanisms of transitional justice, often enabling empowerment of underrepresented groups.

Peace-building and just-society building imply a particularly charged relationship with the past, and necessitate attempts at finding the ‘path between too much memory and too much forgetting’ (Minow 1998: 4); it is in identifying and traversing that path that the function of the arts in transitional societies is most visible. Art practices and artworks both assist recognition of past injustices, their memorialization, and psychological reparation, and testify to the social challenges of transition, measuring satisfaction and evaluating the transitional processes. Their operation tends critically to expose the commensurabilities and disparities between the general reading of the rule of law and its local perception, and the external and the internal practices in place to promote legality in a given community. Yet the ameliorative function of engagement with the arts, and art-based therapies in particular, is also essential in the context that often involves forced displacement of people, the legacy of atrocities and injustice, division of communities, fear of cohabitation, and mistrust of both local and international governing bodies. Artworks furthermore document atrocities committed by abusive regimes in ways and with emotional impact that are unavailable to both governmental policy-makers and non-governmental organizations working in the field of transitional justice or human rights. As such, the arts can give voice to the victims to tell their story: past experiences can sometimes be more fully and more accurately represented via artistic performance (instead of, or in addition to, courtroom testimony) (Stepakoff 2008: 19). In fact, scholars and artists alike frequently insist on just such a function of the arts in a transitional setting: compulsively addressing themselves to the right to remember, the ‘transitional arts’ often remind us of some surreptitious dangers of the practice and theory of transitional justice, for example, those presented by the diffusion of dialogue and memory of the past in an effort to focus solely on economic development. This insistence is informed by one shared structural property of all kinds of art: the production and reception of art affords one with a unique opportunity to engage historical traumata at the level of a cathartic public action, and under relatively protected circumstances of creative activity. A few days before she was scheduled to testify, a witness before the Special Court for Sierra Leone had asked the Witnesses and Victims Section and the Office of the Prosecutor for permission to perform, in front of the court staff, a play she had created together with other witnesses. In an interview after the court performance and the court testimony, she highlighted the similarities and differences between the two experiences: during their testimony the court was able to hear the experience, whereas the play enabled them also to see it, thus relaying some less easily expressible, or inexpressible, content; in addition, while in the courtroom each witness would speak for himself or herself, in the context of a play participants were able to present their stories simultaneously and to show both to the court and to themselves how different elements of their respective experiences are linked (Stepakoff 2008: 23).

Not to be missed in this account, however, is another property of art-making in a transitional justice setting, in and beyond the court: art production can provide a public platform to restore the dignity of individuals and groups, offering acts of moral and symbolic reparation and enabling the participants to re-vision themselves and their role in both local and wider communities. This function is intrinsically related to the well-recorded power of the arts to shape personal and group identities, and create new identities (Mamdani 2007; Kwon 2004). In societies in transition, such processes involve reckoning with the issues of accountability, responsibility, reconciliation, and the sense of justice, as well as projective thinking about the destiny of a nation, and/or the artist as a member of that nation. Art-making assists creative thinking, which is crucial for negotiating these concerns and the construction of new, collectively imagined future.

The uninhibited, uncensored art production is particularly relevant for what has recently become known as transformative reparations, or ‘reparative justice’ – those judicial and non-judicial measures and practices of ‘repairing’ society that aim at transforming or challenging the structures that brought about a conflict or violation of human rights in the first place (Uprimny and Saffon 2009). Typically for this type of operation, an artist would take up an issue in contemporary transitional society (and its legal provision) to reflect on a persistent pattern of structural injustice. The art intervention work Identification (Identificación, 2007) by the Guatemalan-Dominican artist David Pérez Karmadavis provides an engaging exemplification of this model.4

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