The transnational movement for Truth, Justice and Reconciliation as an emotional (rule) regime?

Abstract

The text at first focuses on a recent human rights movement for Truth, Justice and Reconciliation (TJ&R) and the War against Impunity. It briefly presents power structures, values, events and mobilizations that have led to some key forms of its institutionalization, such as the Truth Commissions (TCs), International Crime Tribunals (ICTs) and the International Criminal Court (ICC) in The Hague. It then poses the question of the emotional regimes that have accompanied its emergence and institutionalization. It does so in a threefold manner: it asks what feeling rules have been proposed by the Western armchair critics of the West as appropriate for dealing with past/distant human suffering. It then focuses on the activists – the humanitarian and human rights movements active where the suffering takes place – to see what they propose as appropriate feeling rules. Finally, it reproduces some elements of a broader, transnational debate concerning TJ&R to tease out the feeling rules advocated for victims and perpetrators facing TCs, ICTs, and the ICC in The Hague. In conclusion, the text asks whether we can speak of a Western institutional and emotional regime growing out of the movement for TJ&R.

Keywords:

• reconciliation
• human rights
• power
• emotions
• human suffering

Acknowledgments

The author thanks Katarina Ristic for her valuable comments, references and figures on the ICTY. Thanks are due to the anonymous reviewers; Jonathan G. Heaney for his thought-prompting questions and correcting my English, and Jochen Kleres for reminding me of similar legal trends in the West. I greatly benefited from a conference organized by Dagmar Ellerbrock at the Max Planck Institute for Human Development in June 2013. Comments by Juliane Brauer, Suzanne Karstedt, Allen Feldmann, Roger Petersen and Roland Weierstall were particularly useful, and confirmed the main theses of this article. I am also very grateful to Mischa Gabowitsch for conceptualizing the conference ‘Translating Atonement. Can Countries Learn from Each Other?’ organized by the Einstein Forum and the Hamburger Institute of Social Research in Berlin and Potsdam on 2–4 June, 2011. This excellent conference moved me to formulate several key theses of my article. I would also like to thank the director of the historical unit at the Max Planck Institute for Human Development in Berlin, Ute Frevert, its Film Club and Christine Becher for their hospitality.

Notes

1. Although in the case of the ICTs or the ICC, the agenda for legal reasons seems much clearer than that of the TCs – to engage in the pursuit of truth and justice, and, upon the due consideration of evidence, to punish the guilty – researchers argue that the founding documents of the ICTs and the ICCs indicate the wish to contribute to rewriting the past and to reconciliation as a solid foundations for the shared future (Wald 2002, Dembour and Haslam 2004, Henry 2009, 2010). This agenda can be pursued only in modest ways due to the political counter-will of various ruling elites, limited international and/or national resources, missing courtrooms, lawyers, witnesses, experts, insufficient time for persecuting/hearing witnesses, the biases of judges or experts, the difficulties attending the capturing of perpetrators or securing witnesses, etc. (Minow 1998, pp. 26,39–42, 45, Hayner 2010[2001], Buckley-Zistel, pp. 7–20; Buckley-Zistel and Oettler 2011, pp. 21–37, both in Buckley-Zistel and Kater 2011, Rotberg and Thompson 2000; Zistel and Kater 2011).

2. Crimes against humanity refer to serious attacks on human dignity or a degradation of human being(s) as part of an intentional, widespread and/or systematic practice (Mazlisch 2009, P. 36). At present, among the crimes against humanity, we find the following: murder, extermination, enslavement, deportation, enforced population transfer, imprisonment, torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, persecution, enforced disappearances, apartheid, etc.

3. The anti-land mine campaign laid the foundation for a new network of government, NGO and IO representatives willing to cultivate cooperative, multilateral, transnational relationship aiming to constrain unilateral actions of the powerful (Axworthy 2008, pp. 243,246, Mazlish 2009, p. 51). This coalition, also known as the Human Security Network, posed ‘human security’ as an issue – in contrast to national or international security (Axworthy 2008, pp. 244, 246–247). It became the main mobilizing and expert force behind the Rome Conference – and, more exactly, the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court – leading to the Rome Statute of the IIC signed by 104 states in 1998. When 60 states became parties in 2002, the ICC could be set up. (By 2010 104 states/parties signed, by 2012 121).

4. For the UN, the issue was that the UN/the international community was under the fire of critique for intervening ineffectively in Somalia, too late in Bosnia and Kosovo and for not intervening in Rwanda at all (Smith 2010, Rodrigues 2012). All apart from the humanitarian and human rights considerations, a consistent set of criteria for legitimate interventions was called for. Responding to a call by the secretary general, the International Commission on Intervention and State Sovereignty (ICISS) was set up in 2000. It presented a report, ‘The Responsibility to Protect’, by the end of 2001, in which state sovereignty was said to imply responsibility for the protection of the people (Rodrigues 2012, p. 3). After several other reports, approval by the General UN Assembly in 2005, and general consensus at the 2005 World Summit, the R2P established itself as the fundamental doctrine for international interventions, but the political entrepreneurs within and outside the UN, seconded by a broader movement, are still working on how to implement it (Rodrigues 2012, p. 4). Of relevance here is that the ICISS report stated that the international community, after exhausting a broad variety of means of persuasion and instruments of pressure, not only has an obligation to step in to prevent and to react to a critical humanitarian crisis caused by a state unable or unwilling to deal with it. It also has an obligation to rebuild a people/country destroyed by such a crisis – with the aim of achieving security, good governance, economic and social development as well as justice and reconciliation.

5. The tribunals for former Yugoslavia and Rwanda were mandated by the UNSC, while the ICC by multilateral negotiations of about 160 states. Also unprecedented is the ICC’s definition of crimes against humanity as (i) disassociated from war crimes and (ii) not requiring proof of discriminatory intentions – it is recognized that such acts as apartheid or enforced disappearance speak for themselves (in contrast, the tribunals for former Yugoslavia and Rwanda still called for proof of destructive intentions in the case of genocide) (Mazlish 2009, pp. 53–54). The ICC is to address ‘the most serious crimes of concern to the international community as a whole’ (Mazlish 2009, p. 60). Thus, subject to the jurisdiction of the ICC is any inhumane act committed by states or individuals. The preamble of the Rome Statute weakens its thrust as it reasserts state sovereignty: the Statute does not authorize any state to intervene in an armed conflict or in the internal affairs of any state (in contrast, the Nuremburg Trials did not question state sovereignty and prosecuted only individuals for crimes against humanity – an euphemism for genocide adopted by the French prosecutor, as well as for crimes of war and humanitarian crimes.). China and the USA have not signed the Rome Statute. Russia signed but has not ratified.

6. Each author adopts another term as appropriate to label the emotion that should be felt with respect to distant human suffering: Boltanski speaks of the politics of pity dividing the world into those who suffer and those who do not and argues that suffering can be addressed politically; he defines compassion as an apolitical practice (Boltanski 1999, pp. 3–7); others reject pity and sympathy as implying superiority of the person feeling it towards their object; and Sontag uses sorrow, compassion, pity, etc. interchangeably. Not even two authors can agree on the meaning and implications of the concept of compassion. This is a fairly typical state of discussions about emotions. Since it is not my goal to explore one or more emotions and key psychologists argue that they come in bundles anyway, I adopted compassion and indignation as the two generic concepts or labels; without engaging in a long discussion of their history, meanings and implications. They are only interesting to me insofar as one calls for feeling with and for the victim while the other calls for the emotional rejection/condemnation of the perpetrator.

7. The failure of the T&R Commission for South Africa to elicit remorse or admissions of guilt on the part of key actors running the regime and/or direct perpetrators came as a shock to, for example, Archbishop Tutu, a key mastermind behind the commission. Also, the arrogant presumption on the part of some perpetrators that appearing before the commission guaranteed them amnesty as well as the immediate forgiveness of both victims and society at large took some key promoters of the T&R Commission completely by surprise (Minow 1998, p. 17), revealing how naïve they were. These ‘surprising’ insights into the perpetrators have entered the discourse about the commissions and contributed to structuring the Rwandan Commission so that no amnesty option was attached to disclosing the truth.

8. See Minow (1998, PP. 5, 14, 18, 66–70 and explicitly p. 147) for the need to seek truth (history), forgiveness (theology), justice (punishment, compensation and deterrence), therapy (healing), art (commemoration) and education (learning lessons). She believes in the ‘restorative power of truth-telling’ (1998, pp. 66–70). Minow neither sees the problem of joining the therapeutic with the legal–moral nor that of remembering and yet forgetting/seeking closure.