Hijacked Justice: Dealing with the Past in the Balkans

1. The Politics of Hijacked Justice

15 Over the past twenty years, a global norm has emerged prescribing the appropriate way for states to deal with crimes of the past. This international norm presents a set of expectations for transitional governments to fulfill when facing a state’s criminal history. Crudely, it can be reduced to the statement that gross human rights abuses, such as war crimes, crimes against humanity, and genocide , should be adjudicated in a court of law or another type of justice institution and not left to either vengeful justice or forgiveness.While these crimes were previously dealt with by executions or summary trials set up by victors after conflict, or simply remained unpunished, they are now considered just like other crimes that demand a proper trial and due process.1 In other words, crimes of such magnitude for which no appropriate punishment was ever thought possible2 have in the past few decades begun to be seen as triable and belonging in a court of law or other highly structured institutional setting, such as a truth commission.3 1. See Naomi Roht-Arriaza and Javier Mariezcurrena, eds., Transitional Justice in the Twenty-First Century: Beyond Truth vs. Justice (Cambridge: Cambridge University Press, 2006). 2. See the famous statement by Hannah Arendt about the Nuremberg trials: “For these crimes, no punishment is severe enough. It may well be essential to hang Göring, but it is totally inadequate. That is, this guilt, in contrast to all criminal guilt, oversteps and shatters any and all legal systems. That is the reason why the Nazis in Nuremberg are so smug.” In Hannah Arendt, Karl Jaspers, Lotte Köhler, and Hans Saner, Hannah Arendt/Karl Jaspers correspondence, 1926–1969 (New York: Harcourt Brace Jovanovich, 1992), 54. 3. Steven R. Ratner and Jason S. Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (Oxford: Oxford University Press, 2001); Chandra Sriram, 1 THE POLITICS OF HIJACKED JUSTICE 16 HIJACKED JUSTICE But how do we know that this international expectation is on its way to becoming institutionalized as an international norm? Unlike international justice , which we can trace back at least to the Nuremberg trials, the idea of transitional justice truly attracted international attention only as recently as the 1980s.4 The Greek trials of military leadership in the mid-1970s were the beginning of this trend, which gained much more steam with the internationally publicized Argentinean junta trials in 1985. A decade later, the phenomenal international attention paid to the South African truth and reconciliation commission (TRC) permanently institutionalized that transitional justice model as an alternative or complementary mechanism to trials as a way to deal with a country’s violent past. Detailed studies of truth commissions have also noted an explosion of this particular transitional justice mechanism. One of the leading experts on truth commissions, Priscilla Hayner, even declared that “virtually every state that has recently emerged from authoritarian rule or civil war,” has expressed some interest in creating a truth commission.5 The perceived success of these new institutions provided them with international legitimacy as workable and appropriate models for dealing with serious human rights abuses, even though they remained greatly controversial in their local communities.6 Domestic trials followed in Chile, Guatemala, Panama, Honduras , Peru, Paraguay, Ethiopia, and Rwanda, and truth commissions were established in Burundi, Chad, East Timor, Guatemala, Haiti, South Africa, and Sri Lanka—to name just a few prominent examples. More broadly, the global trend toward legalization and “judicialization” of politics , in which transitional justice is embedded, is also showing signs of spreading and institutionalization.7 Transitional justice was further established, legalized, “Revolutions in Accountability: New Approaches to Past Abuse,” American University International Law Review 19 (2003): 304–429. 4. Gary Jonathan Bass traces the development of international justice to the Napoleonic trials of 1815, the Leipzig trials after World War I, and the Nuremberg and Tokyo trials after World War II. Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton: Princeton University Press, 2000). 5. Priscilla B. Hayner, Unspeakable Truths: Confronting State Terror and Atrocity (New York: Routledge , 2001), 23 (emphasis added). 6. On Argentina, see Luis Roniger and Mario Sznajder, The Legacy of Human-Rights Violations in the Southern Cone: Argentina, Chile, and Uruguay (Oxford: Oxford University Press, 1999). On South Africa, see James Gibson and Amanda Gouws, “Truth and Reconciliation in South Africa: Attributions of Blame and the Struggle over Apartheid,” American Political Science Review 93, no. 3 (1999): 501–18; Charles Villa...