Problems of Transitional Justice: The Politics and Principles of Memory

CIAO DATE: 3/99

Problems of Transitional Justice: The Politics and Principles of Memory _*

Graduate School of International Policy Studies
Monterey Institute of International Studies

International Studies Association
40th Annual Convention
Washington, D.C.
February 16–20, 1999

In recent years there has been a steadily increasing focus by scholars and practitioners within the general field of human rights on the issue of what is generally called “transitional justice”. As a distinct topic for analysis and discussion, transitional justice has to do with situations in which a previously authoritarian regime has given way to a democratic one, and the new democracy is faced with the problem of how to address the human rights abuses of its predecessor. To be sure, issues of transitional justice are hardly a totally new phenomenon. Indeed they have been with us virtually throughout recorded political history. [Louis XVI]

The new salience of the debate over transitional justice, however, is unmistakeable, and it is undoubtedly a result of the unusually potent democratization process that has been observable in various regions of the world over the last decade or so. Latin America and Eastern Europe have clearly led the way in this regard. At the beginning of the 1980’s, genuinely functioning democratic regimes seemed an almost endangered species in the former, and were effectively absent in the latter as well prior to the collapse of the Soviet-dominated communist system. Today, however, Cuba is generally regarded as the only truly authoritarian and closed polity in the Western Hemisphere, and virtually all the East European countries feature at least some variety of pluralistic and competitive politics. Nor is the democratization process confined only to these two areas: the cases of South Korea and South Africa are only two of the more prominent examples of the democratizing trend in other parts of the world, and in both these instances the challenge of transitional justice has been a matter of particular moment.

As a field of study, transitional justice might be said to be concerned above all with the politics and principles of memory. For a new democratic government, and equally, if not more, for its citizenry, the essential questions are what to remember of the past, how to define the past, what to “do” about the past, and how may (or will) all these matters affect both the present and the future of society? Subsumed within these broad categories are a host of more specific questions that, taken together, present an unusually challenging set of moral and practical dilemmas. Within the brief compass of this essay, it will only be possible to touch on some of these, but hopefully the discussion will suggest at least a tentative agenda for future work on the whole issue of transitional justice in very different societal settings.

General Considerations

Work on transitional justice may be rightly regarded as only one reflection of the broader discipline of applied ethics. Particularly as it relates to politics, applied ethics straddles both the concerns of the moral philosophers or the political theorists, and those of actual policymakers and political operatives. It represents an attempt to attach some of the insights of the former to the practical concerns of the latter. Above all, it endeavors to marry some generally accepted principles of moral conduct to the real world of affairs, and to offer judgments on the degree to which a decisionmaker may or may not have demonstrated an appropriate ethical probity given the constraints operating on him or her or as decisionmaker. It is evident from this description that if applied ethics is to mean anything, it has to have some ultimate utility in shaping actual conduct. As the British philosopher Peter Singer says, “An ethical judgment that is no good in practice must suffer from a theoretical defect as well, for the whole point of ethical judgments is to guide practice.” ₁

In developing a methodology for considering problems of applied ethics, one of two broad controlling paradigms is typically adopted. The first of these is the “deontological” approach. In its purest form, deontology (the “science of duty”) stipulates that behavior—whether political or otherwise—should be governed by certain immutable values or principles, that certain acts are morally obligatory regardless of their practical outcomes, and that they may be intuitively identified. To some degree, therefore, a full-fledged deontological definition of ethical behavior rests on an essentially nonrational foundation that asserts a priori that some things are good and some are bad. In this sense, such principles are in themselves underivative and independent, that is, they do not flow out of other propositions nor are they subject to empirical tests of their positive effects. The admonition “let justice be done though the heavens fall” summarizes the basic credo. Immanuel Kant is perhaps the best-known spokesman for deontological ethics. He went so far as to argue that it would be illegitimate to tell a lie even if this would save another person’s life. A variation on deontology is what is called “rule utilitarianism.” This asserts that a primordial moral principle has to be first defended in terms of its beneficent effect on the human condition. This nod to utilitarianism, however, does not mean that any subsequent violation of the moral principle can be defended in utilitarian terms. ₂

The second broad approach adopted in considering problems of applied ethics is generally styled as consequentialist (with utilitarianism as one of its main reflections). As one study puts it, “awareness of the consequences of one’s actions seems a necessary if not sufficient condition for moral conduct. . . . The principle seems [especially] beyond dispute for public officials deciding important policy issues. Officials have a duty to anticipate the important consequences of policies they advocate or implement.” ₃ We have a right to expect from this perspective that statesmen will examine all possible alternatives in dealing with a policy problem, and, more than this, make a careful assessment of the likely positive outcomes of certain actions balanced against their negative side effects. The moral statesman is thus a person who not only means well but does well—or at least as well as possible, taking into account the constraints facing him or her.

Issues in Deontology

In the increasingly wide literature on questions of transitional justice, it is striking how the deontological and consequentialist perspectives are crucial to the character of the dialogue, but with few exceptions the basic implications of adopting either of these approaches seem relatively undeveloped. Thus deontologists assert that “justice must out”, and that to ignore past crimes is not only inherently to condone them but to offer an insult to those who have suffered from egregious human rights abuses. The position adopted here is one essentially sympathetic to such a stance, but even so it must be admitted that there are various problematical aspects to using deontology in defining the parameters of transitional justice.

One of the most obvious of these lies in assessing issues of both quality and quantity: even assuming that we want to address the sins of the path, what criteria must we (necessarily) adopt in sorting out a potentially vast range of abuses. Samuel Huntington posits three different categories of malfeasance by an authoritarian regime: crimes against the state, against individuals, and crimes of collaboration (e.g., active aiding and abetting). ₄ The first of these has to do with actions which supposedly undermined the sovereignty and interests of the state, and have been a particular focus in transitional justice proceedings in the former communist countries of Eastern Europe. Thus the Mazowiecki government in Poland, the first non-communist regime in that country since 1945, ostentatiously drew a “thick line” between present and past as far as individual abuses were concerned. M.’s argument was that if Poland was to progress toward stable democracy and economic development, it had to avoid a debiliating round of recriminations. This did not stop the government, however, from instituting proceedings against Jaruszelski and certain of his associates for “betraying” the Polish state to Soviet power with the initiation of martial law in 1981. Evidently, from M.’s point of view, being unpatriotic was worse than being a brutalizer of individual Poles.

Charges of collaboration seem to partake of the same sort of fervor as that involved in queries about crimes against the state, and have been a particular feature of the transitional justice debate in the Czech Republic. The notion in this instance is that the collaborators have in some sense betrayed the whole nation by conniving in its repression by a despised regime. In the Czech case, the primary method adopted to deal with the collaboration issue has been “lustration”. Under this system, all those aspiring to a role in public life—either elected or appointed—in the current Czech Republic have to be vetted by having their names checked against the list of collaborators maintained by the former communist security service (the StB). If one’s name appears on this list, the penalty is exclusion from public office for a period of five years.

Now no one is claiming that treason or betrayal are matters lightly to be dismissed, but even the most convinced deontologists might wonder at the application of principle in the above two cases. The circumstances under which martial law was introduced into Poland in 1981 remain obscure, but most historians would extend at least some credit to J.’s defense that he undertook this measure only to prevent much worse—an outright invasion of Poland by Soviet forces in order to deal with the threat of Solidarity. Given the complications of the period, it seems not unreasonable to ask whether the indictment of J. was not driven more by considerations of politics than the search for justice. Equally, the lustration process in the Czech Republic seems to be riddled with contradictions and moral ambiguities. Essentially, the premise behind lustration is that one is guilty unless proven innocent, and in practice having one’s name on the dreaded StB list has proven almost insurmountable. All this despite the fact that even former StB officials admit that they padded their list of collaborators in order to meet arbitrary quotas; in some instances, they simply “recruited” individuals to the list whom they had never even met. Moreover, the list itself is evidently quite incomplete, with the names of genuinely harmful informers mysteriously being expunged in the confusing period following the Velvet Revolution.

Huntington’s second category of crimes—those directed against individuals—would seem by any measure to be the ones that should receive the most direct attention in the post-authoritarian era. Yet even here difficulties remain. Tina Rosenberg, author of a memorable study on transitional justice in Eastern Europe, makes an interesting comparison between the human rights situation in that region and in Latin America under repressive regimes. In the former, abuses were relatively widespread but not deep, whereas in the latter they were often deep but not necessarily widespread. In other words, in Latin America a selected group of individuals were subject to truly draconian measures while the majority of society was (or could be) more or less unaffected. In Eastern Europe, at least after the Stalinist period, there was less in the way of true brutalization of individuals, but a much wider group of people suffered at least some deprivation at the hands of the regime, whether in the realms of travel, education, career advancement or whatever. The question becomes which of these category of abuses is most objectionable and subject to “punishment” by the new democracies?

Even in the Latin American case, it seems necessary to arrive at some distinctions as to the degree of abuse directed at effected individuals. The new democatic regimes of the region, after all, have limited resources—judicial and political—at their disposal for making good the depredations of the past, and even given the “deep but not wide” represson of the old government, a great many cases are potentially open to judgment. In sorting out the most egregious from the somewhat less onerous abuses of the past, clearly we have to have resort to some standard human rights theory that essentially delineates certain classes of human rights and prioritizes among them. Thus a typical distinction is made between so-called “negative rights”, e.g., the right to be free from torture or other types of physical persecution, and “positive rights”, e.g., the right to free expression or to a minimal standard of living. [mention Shue here] Presumably it is the violation of “negative rights” that should receive first attention in a period of transitional justice, but this does not mean that the latter can’t have lain heavily on various individuals as well.

Even within the area of, say, physical mistreatment, moreover, there are also gradations that need to be addressed, separating out truly horrendous acts of torture and death from a wider variety of unpleasant but not necessarily as drastic measures. It is of interest in this connection to observe the intense debate that has been going on for some time about the application of “modifed physical pressure” by Israeli authorities in dealing with suspected Palestinian terrorists. What is involved is “shaking”, various types of sensory deprivations (lack of sleep, disorientation), extended interrogrations, and so forth. Many consider these measures basic human rights violations, whereas Israeli authorities defend them as relatively mild means designed to deter future terrorist actions. [fn]

Assuming that major attention should be given to punishing past human rights abusers—and, as far as possible, to providing restitution to the victims—there remain still more issues for deontologists to ponder. One of these has to do with the “chain of command” problem and with the perennial “superior orders” defense. In a fully-developed authoritarian system with a wide-ranging internal security apparatus, there may be literally thousands of individuals who have been involved, in one way or another, in the mistreatment of individuals. Where should the focus of transitional justice efforts lie in such a circumstance? One’s instinct is to argue that those at the top of the chain of command should receive primary attention, but does this mean that many other, more obscure torturers should go unpunished? Certainly a major guiding principle here should be the degree of coercion that the individual was subject to in carrying out palpably immoral (and illegal) orders. Few applied ethicists would argue that security personnel simply have to ignore any and all personal risk in refusing to obey doubtful orders. The tricky point is to establish, or to attempt to establish, the degree of such “risk” that was present in particular circumtances. One interesting point that emerged out of some of the trials of Nazi SS personnel after World War II was that to a surprising extent SS people did have the opportunity to refuse to participate in what they considered unnecessarily brutal measures. To be sure, the sanctions visited on them in such a case—even if they didn’t amount to summary execution—were hardly pleasant, e.g., being transferred to combat duties on the Russian front. The point remains, however, that such individuals did have a certain range of moral choice, and when this operational fact was established at the SS trials, it went a long ways toward undermining the “defense from coercion” that was such a feature of these cases.

Another challenge to the deontological perspective on transitional justice is the standard legal principle of nulla poena sine lega, which essentially states that if an action was not considered a crime at the time of its commission, there may be, or should be, a serious query against prosecuting the individual involved under a later, and more enlightened, legal code. This consideration is obviously related to the prohibition against ex post facto laws found in the American Constitution and many other legal systems, and has a connection as well to the notion of superior orders discussed above. It is not difficult in many instances for lawyers defending the accused from a previous authoritarian regime to point out provisions of the then-existing legal code that not only allowed but even commanded certain actions that would subsequently be condemned as inappropriate or unjust. Such a defense has been particularly prominent in various East European countries, given the widespread, if vague, provisions in communist constitutions referring to “enemies of the people” and the necessity of taking of all necessary measures to combat them. One way out of the nulla poena sine lega connundrum has been for the courts to rely on some version of “natural law”, permanent principles of just behavior identifiable by right reason, that in theory override any contrary statutory law. This device was used, for example, in the Frankfurt case [give details]

A final issue in deontological approaches to transitional justice involves a difficulty that is always cited by those dubious of the deontological paradigm generally in matters of applied ethics: the dilemma of conflicting first principles. From a substantive point of view, punishing (or least identifying) the guilty clearly has to rank very high in the pantheon of deontological concerns. At the same, deonotology also speaks to procedures as morally important in rightful behavior. We have addressed this question to some degree already, but what is at stake is a system in which even the most heinous of potential abusers are given standard judicial protections that are a necessary incredient of any reasonably functioning democratic system, including the right to know the terms of the indictment, public and timely judicial procedures, adequate defense counsel, and rights of cross-examination. It might be noted in this respect that there is an interesting tension amongst some of the prevailing international conventions having to do with the observance and protection of human rights. Thus the famous International Covenant on Civil and Political Rights [title?] addresses a series of substantive and inalienable rights that every individual enjoys as a function of their human personality, but the same Covenant also concerns itself with procedural protections to which accused individuals should properly have recourse. As far as transitional justice is concerned, the potential conflict is clear enough: an impeccable attention to principles of procedure may undermine the substantive effort to convict the guilty, e.g., in identifying witnesses who are able credibly to attest to the crimes of the accused. The ever-present danger here is that attempts to embrace shortcuts in judicial procedure may effectively undermine the democratic credentials of the successor regime, and in this sense prove morally self-defeating, at least in the long run.

Issues in Consequentialism

Enough has been said here to suggest the difficulties of applying a strict deontological perspective to issues of transitional justice, but that doesn’t mean that adopting a consequentialist standard in assessing these issues doesn’t have its own ambiguities and challenges. For example, perhaps the most common tack that consequentialists take in analysing transitional justice is to posit a continuing tension between “justice” and “order”, or, more specifically, between attending to the crimes of the past and establishing stable democratic government in the present. The assertion is that there can (virtually) never be a situation in which a newly-democratic regime is under absolute moral obligation to pursue justice for former victims or to punish those responsible for human rights abuses. Their duties in this regard lie not in the realm of the abstract but in the realm of the possible, to wit, how much justice can the new regime attain without destabilizing the country’s social and political system and thus putting democracy itself at risk?

The dilemmas here can be seen particularly in some of the Latin American cases in transitional justice, and especially in those countries where the transfer of power from an authoritarian regime to a democratic one was essentially a matter of negotiation and compromise. In such circumstances, representatives of the old regime, particularly in the military, may retain considerable power and sit watchfully to insure that the proceedings of “justice” do not turn their way. Clearly Chile is one of the best examples here. The government of General Augusto Pinochet insisted on a series of statutory measures protecting its principal figures before it would agree to hand over power to the democratic forces in Chile. Moreover, Pinochet remained as head of the Chilean armed forces. Under the circumstances, while the first post-Pinochet government, that of Patrice Alywin [check spelling], made some admirable attempts to address the abuses of the Pinochet period, their efforts were unsatisfying or incomplete in the view of many, especially the victims themselves. Consequentialists tend to argue, however, that Aylwin and his successor, Eduardo Frei, ought to be admired rather than condemned for their efforts. After all, they were under no obligation to commit political suicide—not just for themselves but, more importantly, for Chilean democracy—in a single-minded effort to confront the abuses of the past. The same attitude is generally adopted by the consequentialists in assessing the performance of the Alfonsin regime in Argentina after the removal of the military junta in that country in 1983. When he first came into office, Alfonsin gave great attention to publicizing the human rights abuses of the junta and to punishing some of the top figures responsible for them. After several attempted military coups in the mid-1980’s in response to these efforts, however, his government significantly dialed back on its attention to the crimes of the past and in 1987 introduced the so-called “full stop” law [details]. Alfonsin’s successor, Menem [full name] went even farther by pardoning all of the principal junta figures who had earlier been convicted. Not an especially redeeming picture but—the consequentialists would argue—hardly a surprising or even objectionable one. As in the case of individuals coerced into committing regrettable or even reprehensible acts, governments too must sometimes act in circumstances of force majeure, placing the good of the whole (the Argentinian people’s continued enjoyment of democracy) above the claims of the relative few who had directly suffered under the old regime.

The balancing of the claims of various groups and individuals is, of course, a staple of utilitarian thought: the greatest good for the greatest number. Applying the utilitarian formula in specific cases of transitional justice, however, is rarely a simple matter. In particular, there is the dilemma of assessing just how severe a threat elements of the old regime really present to the new one. Certainly a vigorous prosecution of those responsible for human rights abuses in the past is bound to create a backlash and raises the prospect of political instability. The question is whether these effects are manageable, even if unpleasant, or whether they are so fundamental as to threaten the continuation of democracy. The victims of the authoritarian regime, after all, do have their own rights, at the very least the right to have a full public accounting of the abuses of the past. To what degree must these rights be set aside in the face of what may be an amorphous or doubtful prospect of a truly drastic retaliation on the part of the accused? There are many who feel that first Alfonsin, and later Menem, clearly exaggerated the threat that the Argentine military presented to the contination of Argentinian democracy—particularly given the drastic falloff in the prestige of that military after the fiasco of the Falklands war. If this was the case, then the search for justice was unnecesarily mortgaged to an ephemeral rather than an actual threat.

There is an interesting and quite different application of the consequentialist standard that one often finds in the literature on transitional justice, and in this instance the effect of using such a standard is not to limit the search for justice but actually to increase the pressure for its being carried out. The argument here is that to ignore or excuse the crimes of the past is to encourage their being repeated in the future. Some deontologists make a somewhat similar sounding argument—that standards of justice must always be enforced if they are to have real meaning—but on balance this seems to be more an issue of consequentialist thought than of deontology. That is to say, it represents an essentially empirical proposition about the effect of a given action on subsequent conduct, and to this extent is, at least in theory, open to empirical testing and demonstration. As it happens, the notion that to ignore certain crimes is to encourage their repetition has to be regarded almost as an article of faith rather than something that has been clearly demonstrated by an examination of specific historical evidence. This is not say that there may not be some actual validity to the proposition, but it would take a lot more in the way of applied research involving cases of transitional justice than we have at present to establish just how much truth it contains. The cynic might suggest, for example, that one of the prime motivations behind the Nuremberg trials of the major Nazi war criminals—to convince potential future miscreants that their villainy would not go unaddressed, particularly as it involved crimes against humanity—has hardly led to an absence of such crimes since 1945, even if they may not have reached the level of the Nazi horrors.

Doing Good and Doing Well

The ongoing issue of transitional justice is a compelling one because it touches on some of the most basic aspects of our moral universe, and the possibilities and difficulties of achieving ethical outcomes in this troubled vale of tears. Perhaps the fundamental question here is whether we do (or potentially can) live in such a universe, in which goodness and justice are rewarded, or at least recognized, or whether evil can take place with impunity. One alternative model suggests, in the words of the poet Robert Frost, that

If one by one we counted people out
For the least sin, it wouldn’t take us long
To get so we had no one left to live with,
For to be social is to be forgiving.

From this perspective, the foundation of wisdom—and of ethical conduct—is to recognize that all of us, given particular circumstances, are capable of hateful acts, and in order to carve out a more ethically coherent future, we must accept sin on the part of others even as we recognize that it is also (potentially) present in our own souls as well.

Yet there is also this compelling passage from one of the final scenes of Stanley Kramer’s powerful film Judgment at Nuremberg. The main character in this film was one of the most distinguished and principled legal scholars of the Weimar period in Germany, but accepted to continue as a judge under the Nazi regime, during which time he handed down a series of verdicts involving the death penalty which he knew to be wrong. After his conviction for crimes against humanity by an Allied tribunal after the war, in a comment to the presiding American judge of the tribunal, he agrees that the verdict was “a just one”, but at the same time enters a mea culpa. “You must believe,” he says, “that I never realized my actions would ever come to that,” meaning that they would be part of an ever expanding regime of atrocities by the regime. The American judge replied evenly: “It came to that the first time you convicted a defendant whom you knew to be innocent.” Now the Nuremberg trials were controversial, and remain so in some quarters, because of accusations that they were essentially “victors’ justice” that punished individuals that would have gone free if they had been citizens of the conquering powers. ₅ No doubt there is some truth to this proposition, but the question that has always hung over the proceedings remains the same: are there are not crimes that regardless of provenance, or legal and political context, remain acts so repulsive as to require redress?

Issues of transitional justice, as noted above, cut even deeper because they require the societies involved to engage in a process of self-examination and moral assessment that may prove distinctly uncomfortable. Thus one is left with the distinct impression that the particular fury of the Czech lustration process has had as much to do with uneasy feelings about most people’s passivity in the face of communist tyranny in the past as with a newfound zealousness in confronting wrongdoing. In this sense, one can wash away a sense of guilt at not standing up to evil by now—in safer circumstances—rediscovering a taste for justice. Carl Jung made the point some years ago. In his “Archetypes of the Collective Unconscious”, he observed “with what pleasure we read newspaper reports of crime! A true criminal becomes a popular figure because he unburdens in no small degree the conscience of his fellow men, for now they know once more where evil is to be found.” ₆ In other words, by “identifying” the true villains, we implicitly exonerate outselves.

Hanging over all of this is the implicit recognition of what Hannah Arendt called the “banality of evil”, which is to say that wrong-doers rarely satisfy our demand or expectation that they be in some sense “unusual” or patent moral degenerates. ₇ The famous British essayist William Hazlitt once observed that “a wonder is often expressed that the greatest criminals look like other men. The reason is that they are like other men in many respects.” ₈ In condemning past (or present) wrong-doers, therefore, we are in a curious way offering an implicit indictment of ourselves, which is to say that but for the grace of God goes myself. It seems likely that the reason so many new democratic societies have been distinctly loath to confront the crimes of their old authoritarian governments is that in discovering them, they are also discovering themselves.

Endnotes

*: Prepared for presentation at the annual meeting of the International Studies Association, Washington, D.C., February 16–20, 1999. Back.

Note 1: Peter Singer, Practical Ethics (Cambridge: Cambridge University Press, 1979), 2. Back.

Note 2: Paul Edwards, editor-in-chief, The Encyclopedia of Philosophy, Vol. 2 (New York: The Macmillan Company and The Free Press, 1967), 343; see also, Dagobert D. Runes, ed., Dictionary of Philosophy (Totowa, NJ: Littlefield, Adams and Co., 1975), 76, 150. Back.

Note 3: Mark Moore, “Realms of Obligation and Virtue,” in Public Duties: The Moral Obligations of Government Officials, eds. Joel Fleishman et al. (Cambridge, MA: Harvard University Press, 1981), 10. Back.