1-2 2011 Content

86 (2011) 1-2: Transitional Justice 2.0

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Introduction: Transitional Justice 2.0. The Conceptual Expansion
of a new Research Program

Stefan Engert / Anja Jetschke

How do states and societies deal with collective wrongs after violent conflict? This question exemplifies the core of research about transitional justice, the topic of this special issue. How can peace be sustained, how can victims and perpetrators be reconciled so that they are able to live next to each other peacefully, be it in a domestic or international context? How can acts of revenge be prevented? Since the end of the cold war, these questions have gained in prominence, for various reasons. In political science (but also in other disciplines) transitional justice has emerged as an important area of research, cutting across different disciplines. This introductory article maps the research field of transitional justice and identifies a research gap of existing publications: The relative lack of systematic-comparative research on cases that have established instruments of reconciliation. Most of the existing studies are descriptive, empirical and oriented toward single-case studies. This introduction explains the conceptual idea behind the special issue.

The Consequences of a Decade-Long Amnesty / Amnesia Policy
in Spain: A Case Study of the Town of Llanes (Asturias)
Beatrice Schlee

The Spanish policy of covering the events of the civil war and the Franco dictatorship beneath a veil of silence was abruptly shattered a good twenty years later when mass graves all over the country were exhumed by civil society organisations. Despite the remembrance boom that this unleashed and despite the so-called ‘Law of Historical Memory’ passed in 2007, the impact on rural areas seems to be marginal. Close examination of the microcosm of a small Spanish town shows that communities of remembrance still exist along the political cleavages prevailing in the 1930s and that these influence political behaviour. The article outlines the implementation of the ‘Law of Historical Memory’ and illustrates the negative consequences of the amnesty / amnesia policy, namely, of having hindered the formation of a democratic political culture during the phase of consolidation.
Two Cases of Amnesia and the Complex Postcolonial Situation
of Namibia
Reinhart Kößler

Referring to recent calls to rehabilitate forgetting as a legitimate form of public consciousness, the paper looks at two cases of such amnesia: the treatment of the colonial genocide of 1904-1908 in Namibia in post-World War II Germany as well as in the independent postcolony, and the debate around the human rights violations committed by SWAPO during the 1980s, which also began with independence in 1989/1990. In the first case, we observe a transnational process which has contributed towards changes in the positioning of both governments. At the same time, this points to official images of history and concomitant constructions of national identity. Such conceptions of the nation are also present in the strategies to repress the memory of the human rights violations by the former liberation movement. In their precariousness, such strategies also address issues of political culture. Lastly, power relations which will determine perspectives of sustainable amnesia are taken up.

The Emperor has no Clothes!
Criminal Proceedings through Hybrid Tribunals
Anja Jetschke

This article looks at coming to terms with the past through the instrument of criminal tribunals. Two questions will be asked: What determines whether states chose criminal tribunals or other instruments of coming to terms with the past? Is the causal mechanism that theories of transitional justice accord to tribunals observable? A systematic comparison of the hybrid tribunals in Cambodia, East Timor and Sierra Leone seeks answers to these questions. Concerning the first question, the article argues that the establishment of tribunals is influenced by the existing balance of power. Tribunals are the more likely, the more the internal distribution of power among previous parties of a civil war favors the former victims and the easier crimes can be attributed to the now besieged party. The pattern emerging from the type of instruments used for different conflict periods, the distribution of indictments and the number of sentences suggests that tribunals do not live up to their claims of reaching reconciliation through retributive justice. The article discusses the implications of this finding.

Reconciliation by Means of Law or Symbols?
Comparing the Reconciliatory Effects of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and Political Apologies in Former Yugoslavia.
Michel-André Horelt

This article delineates the different characteristics of collective apologies compared to individual trials in post-conflict Yugoslavia. While collective apologies are said to exert reconciliatory power through public atonement and the acknowledgement of collective historic responsibility for mass crimes, war crime trials, on the contrary, help to evade detrimental collective stereotyping by individualizing historical guilt. The article undertakes a critical empirical evaluation of these assumed effects by analysing the official reception of ICTY trials and political apologies in relation to Serbian war crimes in Vukovar and Srebrenica. The article demonstrates that (1) both the issued apologies and war crimes trails before the ICTY are used by representatives to divert collective responsibility for war crimes in Serbia. Furthermore (2), the article identifies some differences: While trials have contributed to the establishment of factual knowledge in relation to war crimes, the Serbian apologies have succeeded in situations in which the addressees of the apologies have had a vested interest in political rapprochement. Thus the article identifies the complementary and different effects in the implementation of both approaches.

After Canossa: A liberal theory of state apologies
Stefan Engert

Apologies prevent war and foster reconciliation if political responsibility for historical wrongdoings is unconditionally acknowledged. If guilt is, however, denied or excused by the perpetrator, a worsening of bilateral relations – even a return to physical violence out of revenge – is not that unlikely. The paper argues that the reconciliatory effect of apologies depends on the specific form of the “sorry speech act”, which in turn depends on the distribution of domestic preferences between governmental and societal actors. If they converge, a denial of guilt or a fully fledged apology will be the outcome, if they diverge, the government will issue an excuse. The reconciliatory effect as well as the choice of the speech act will be examined in the case of German-Israeli reconciliation and the former’s excuse (1951) and apology (2000) for the Holocaust as well as Turkey’s continuing denial of the Armenian genocide.

Reparations as Instrument of Transitional Justice:
What Accounts for State Compliance?
Mia Swart

The obligation upon states to pay reparations to victims of serious human rights violations is increasingly recognized in international law. Reparations have also become part of the core elements of Transitional Justice.  Both from the perspective of international law and from the perspective of Transitional Justice it is clear that reparations are considered a mechanism to restore a divided society in a phase of transition. In spite of the obligation on states to pay reparations it is clear that they often do not honor this undertaking since there is no sanction or punishment for non-compliance. What then explains compliance? This article will analyse the phenomenon that states pay reparations in spite of the fact that there is no punishment for non-compliance. The article will explore three different models of compliance: the Latin American model illustrating strong compliance; the South African example which illustrates partial compliance and the model represented by the United States and Australia illustrating non-compliance. The article will look at the factors which influence states to comply with their responsibilities in international law and conclude that the law (specifically regional human rights courts ) has a powerful role to play in determining whether states comply with paying reparations.

Delayed Truth Commissions in Latina America and Africa:
A Comparative Perspective
Florian Ranft

This paper analyses truth commissions with a significant time span to the transitional period and questions the causal mechanisms linked to it. To explain the time-gap, hypotheses are posed and tested on the balance of power and the degree of human rights violations. Scrutinizing truth commissions in Uruguay, Ghana and Panama, it is argued that a lower degree of human rights violations and political leaders closely related to the old regimes contribute to this delay. The results are controlled by the analysis of truth commissions in Argentina, South Africa and Haiti which were directly set up after the transition.

“Reconciliation” as an Empty Signifier in the Context
of Political Transitions: A Discourse Theoretical Approach
Judith Renner

This article inquires into the role of reconciliation in the context of political transitions. It argues that reconciliation can be understood first and foremost as a discursive device which has gained hegemony in numerous transitions around the globe. Building on the discourse theory developed by Ernesto Laclau and Chantal Mouffe, the article suggests understanding political transitions as situations of severe social crisis in which hegemonic discourses are destabilized and new social ideals have to be articulated to re-order society and make collective action possible. In such a situation, reconciliation functions as an empty signifier, that is a vague but powerful social ideal which helps to unite a polarized political landscape in its name and thus to overcome the political crisis at least temporarily. Guided by these theoretical reflections, the second part of the article offers two discourse analyses which examine the articulation of reconciliation discourse in Spain and South Africa.