Unchopping a Tree

4 Institutional and Legal Responses: Trials and Truth Commissions

❖ T his chapter explores the use of institutional mechanisms to foster societal reconciliation. Although the vast majority of conflicts in the twentieth century were never followed with prosecutions of those responsible for the most significant violations, and while few authoritarian leaders have faced trial for their abuses, the century also witnessed the emergence of the principle that serious human rights violations should be punished through a legal process, rather than with simple revenge. The development of international human rights law and the establishment of occasional tribunals reflect a change in how nations understand past violations and their legacies. Indeed, considering the devastation of the past one hundred years, it is perhaps not surprising that a global human rights discourse has developed and matured, espousing fundamental ideals of human dignity and respect. Nevertheless, this development was never guaranteed. The Nuremberg and Tokyo trials following World War II and the UN Genocide Convention (1948) established the principle that perpetrators of crimes against humanity should be tried and punished for their actions, but the Cold War put human rights concerns in a deep freeze for nearly forty years. In the Soviet-American bipolar world, human rights rhetoric was manipulated for political purposes and was rarely if ever the motivating force behind foreign policy (Ball 1999). Institutional and Legal Responses Trials and Truth Commissions 4 Institutional and Legal Responses ▪ 93 Human rights law is today the weakest component of international jurisprudence, certainly much weaker than international business or trade law. Still, there is no doubt that with the end of the Cold War, human rights discourse has gained strength. The past two decades have seen two international war crimes tribunals established, for Rwanda (ICTR) and the former Yugoslavia (ICTY), and additional tribunals have been created in Sierra Leone, East Timor, and Cambodia. The first permanent global criminal court, the International Criminal Court (ICC), came into being in the early years of the twenty-first century. Furthermore, domestic courts around the world have taken up the challenge of prosecuting human rights violators as a way of meaningfully engaging the past and reestablishing the rule of law. “Retributive” justice has become a guiding norm for human rights supporters around the world. Tribunals have not been the only institutional response offered by human rights advocates. Over the past three decades, there have been increasing calls for the establishment of truth commissions to compile official histories of oppression and recognize victims. Nations around the world have adopted truth commissions, in many guises, as a way to come to terms with painful pasts. Generally eschewing formal trials (often because of political constraints), commissions have focused on restoring the dignity of victims and survivors and producing a definitive historical account by espousing what advocates call “restorative” justice in their quest for societal reconciliation. This chapter considers how nations have attempted to come to terms with their violent history through the use of tribunals and truth commissions, by assessing their contributions and limitations for reconciliation . This chapter is divided into two parts. Part I discusses the normative underpinnings of tribunals and truth commissions, retributive and restorative justice, respectively. While I find this distinction ultimately unsatisfactory, I begin here (which is how the debate continues to be framed) before moving on to an alternative formulation. I consider the justifications, promises, and limits of both retributive and restorative justice, and assess their contributions to reconciliation. Part II identifies factors that affect the viability of tribunals and truth commissions , and emphasizes the importance of contextual constraints on their implementation and use. I conclude with qualified support for both institutions, arguing that (1) they are not mutually exclusive 94 ▪ Chapter 4 (either theoretically or practically) but rather often complementary and (2) they are important but by no means sufficient instruments for social reconciliation. I contextualize the importance of this social level by showing the impact that institutional mechanisms can have on societal reconciliation. The importance of this level for the norms of respect , accountability, rule of law, and truth telling is emphasized, but what also emerges is the insufficiency of this level for broad-based reconciliation. Part I: Normative Foundations To assess tribunals and truth commissions requires some criteria for evaluation. In Chapter 2, I discussed and defended a plurality of normative concepts that give greater theoretical substance to the idea of reconciliation as respect. In this chapter, I employ these concepts as a measuring device to analyze tribunals and commissions, and to...