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Violence and Social Repair:
Rethinking the Contribution of Justice to Reconciliation
Close relatives and friends are dead or missing. Homes lie in ruins. Property has been destroyed. With everybody experiencing trouble, severe privations and physical suffering, it is still something altogether different whether one retains a home and household goods or has been ruined by bombs; whether he sustained his suffering and losses in combat at the front, at home, or in a concentration camp; whether he was a hunted. . . victim or one of those who, even though in fear, profited by the regime . . . . Men have come to the limits of humanity and returned home, unable to forget what really was . . . . The suffering differs in kind, and most people have sense only for their [End Page 573] kind. Everyone tends to interpret great losses and trials as a sacrifice. But the possible interpretations of this sacrifice are so abysmally different that, at first, they divide people.
Karl Jaspers 1
In the last decade, there has been a burgeoning interest in the question of how countries recover from episodes of mass violence or gross human rights violations. 2 This interest has focused on the concept of transitional justice, a term we use to describe the processes by which a state seeks to redress the violations of a prior regime. 3 Despite the fact that military and political leaders who ordered or directed mass terror generally have evaded accountability for their deeds, justice—in the form of criminal trials—has [End Page 574] been the rallying cry of many who seek to repair the injury individuals and communities have sustained as a result of these heinous acts. 4 As dictatorships and repressive regimes fell in Latin America in the 1980s and 1990s, human rights scholars and advocates pressed states to initiate domestic criminal proceedings against the notorious intellectual authors of mass terror and their faithful subordinates. 5 However, the fragile democracies, weak judiciaries, and amnesty laws made domestic trials difficult to institute. 6
Further, the character of war has shifted from inter- to intra-state conflict since World War II. 7 These wars reflect intense competition for power and [End Page 575] wealth among groups struggling for supremacy. Often characterized as racially, ethnically, or tribally motivated, one commonality among these conflicts is that warring forces target civilian populations, particularly women and children, and cause massive destruction of infrastructure. 8 Mass violence results in the breakdown of societal structures—social and economic institutions, and networks of familial and intimate relationships that provide the foundation for a functioning community. 9 Indiscriminate and episodic violence occurs at random and affects people at a neighborhood level. Even where the violence is centrally planned (as in Bosnia-Herzegovina or Rwanda), 10 the collaboration of paramilitary with military units produces acts of violence and cruelty that are designed not only to kill but to terrorize and destroy the basis of community life. 11 Neighbor-on-neighbor violence is [End Page 576] characteristic of this form of aggression as seemingly peaceful community members are swept up in the inexorable process of killing. 12 Thus, human suffering at a communal level is a shared feature of contemporary conflict.
Yet, with the exception of the Nuremberg and Tokyo Tribunals, there have been no international mechanisms for accountability until the recent ad hoc criminal tribunals for the former Yugoslavia and Rwanda. 13 Drawing on the Latin American context, international criminal trials have become a significant response to mass violence, 14 and this trend is strengthened as the International Criminal Court ("ICC") comes closer to a creation. 15 [End Page 577]
Thus, the predominant mechanism to respond to mass violence focuses on individual perpetrators of war crimes and other serious violations of international law. Frequently, advocates for this model suggest that international trials may be the single most appropriate response to communal violence. While transitional justice scholars recognize that judicial and truth-seeking mechanisms constitute one important component of a...