Once violent conflict between two groups has subsided, what is thebest way to transition to a civil society? Do former enemies need to“come to terms with their past” if they are to livepeacefully? If such a reckoning is required, what are the strategiesof transition available to the parties?

The field of transitional justice, which investigates such questions,involves the philosophical, legal, and political investigation of theaftermath of war. This entry will provide an introduction to thecentral problems animating this relatively new field. It will do so byexamining the history and difficulties associated with the operationof three important transitional policies: war crime tribunals, truthcommissions, and lustration policies.^[1] We will consider, among others questions,tensions between the desire for peace and stability after war and theimportance of putting human rights violators on trial, the need, aspart of a political transition, to create a reliable historical recordof past abuses, the promise and limitations of international criminallaw, and the coherence of forgiveness in politics.

Part 1 provides a theoretical introduction to the nature oftransitional justice by highlighting the tensions between peace andjustice typical of transitional settings. Part 2 examines thedifficulties associated with war crime tribunals. Part 3 concentrateson the dilemmas involved in the operation of truth commissions. Part 4focuses on administrative purges or lustration policies. The finalsection considers the possibility of forgetting as a response to massatrocity.^[2]

• 1. Introduction to Transitional Justice
  • 1.1 The Contradictions of Transitional Justice
  • 1.2 Peace versus Justice
• 2. War Crime Tribunals
  • 2.1 Historical Background
  • 2.2 Criticisms of war crime tribunals
    • 2.2.1 Victor's Justice
    • 2.2.2 Retroactivity
    • 2.2.3 Selectivity
• 3. Truth Commissions
  • 3.1 Historical Background
  • 3.2 Justifying Truth Commissions
    • 3.2.1 Deliberative democracy
    • 3.2.2 Justice as Recognition
    • 3.2.3 More truth
    • 3.2.4 Forgiveness
• 4. Lustration
  • 4.1 Historical Background
  • 4.2 Criticisms of Lustration
• 5. Forgetting
• Bibliography
• Academic Tools
• Other Internet Resources
• Related Entries

1. Introduction to Transitional Justice

The term “Transitional Justice” has come, in recentyears, to designate a field of academic inquiry, as well as politicalpractice, concerned with the aftermath of conflict and large-scalehuman rights abuses. Theorists and practitioners of transitionaljustice focus on the most effective and legitimate ways of addressingpast wrongs and moving towards the (re)establishment of a decent civilorder. In this introduction, I describe the political and moral goalsofficials tend to pursue in transitional settings and map out some ofthe tensions between these goals. I argue that such strains are theresult of an endemic friction between the demands of stability andjustice after war (the introduction draws on Eisikovits 2013).

1.1 The Contradictions of Transitional Justice

In making the transition from a violent past into settled, legitimategovernance, officials typically pursue multiple goals. While some ofthese are mutually reinforcing, others come into conflict with eachother. As a result it is difficult to fully pursue all transitionalgoals at the same time. In what follows I describe the most importanttransitional goals and elaborate about the relationships betweenthem.

1. Creating a reliable record of past human rightsabuses. Such a record is obviously important, for its own sake,as part of the very human project of keeping our history as accuratelyas possible.^[3] Itis also helpful in rebuffing spurious revisionist claims (thus, forexample, the record created by the Nuremberg trials has been helpfulin rejecting the claims of various Holocaust deniers) and, morebroadly, in ending the displays of impunity so typical ofauthoritarian governments. Once such a record is established itbecomes impossible for those who colluded with an oppressive regime todeny responsibility and involvement in past crimes.^[4] Perhaps mostimportantly, the creation of an accurate, comprehensive, and publichistorical record matters for the psychological healing of victims whoreport, time and again, benefitting from official and publicacknowledgement of their suffering (see, e.g., Minow 2000).
2. Setting up a functional, professional bureaucracy and civilservice, to efficiently serve the needs of the population. Aswith the cementing of the rule of law, part of the idea is toestablish (or reestablish) citizens' trust in their government; oncebasic services are rendered in a reliable, non-arbitrary, fashionordinary citizens may gain (or regain) the belief that government'sjob is to serve rather than oppress them.
3. Helping victims restructure and repair their lives, byattending to their physical and psychological afflictions, restitutinglost property, compensating them for their losses, and fixinghistorical injustices that systematically disadvantaged them. Needlessto say, this project overlaps with the second and third goals; afterall, to address the psychological distress of victims it is helpful topunish those who hurt them and to provide respectful forums in whichthe stories of such victims can be heard.
4. Stopping violence and consolidating stability, so as toallow the creation of a normal civic and commercial life, cement trustin government, and draw outside investments.

While all of these goals are politically important, it is easy tosee how they can come into conflict. Prosecuting the guilty can harmpolitical stability, as the prosecuted and their (often armed)followers become resentful about what they perceive as a politicallymotivated witch-hunt. Post-war prosecutions may also come intoconflict with the need to cement the rule of law, as such prosecutionsoften require departures from the rules of procedural justice. Suchwas the case with the retroactive criminalization that lay at theheart of the Nuremberg Trials. The doctrine of “CommandResponsibility” first developed at Nuremberg and used later bythe International Criminal Tribunal for Yugoslavia also departs frombasic principles of legalism, by basing convictions on the status ofdefendants rather than on direct and specific evidence concerningtheir actions (on this, see Drumbl 2005).

Even when prosecutions do not threaten political stability and manageto stay true to the principles of the rule of law, they can still comeinto conflict with the desire to create a robust, comprehensivehistorical record. When trials are used as the primary mechanism oftransitional justice, their very subjection to the rules of evidencemeans that some important information (namely testimony that does notpertain to specific indictments, or evidence obtained without full dueprocess etc.) will be excluded from the record. This limitation hasprompted some scholars to argue that truth commissions are preferableto war crime trials in this respect: since such commissions are notsubject to the rules of evidence, they are able to collect moreinformation, expose a more comprehensive picture of past injusticesand to include a greater emphasis on the role of institutional andcommercial actors indirectly involved in supportinginjustices.^[5]

The need to provide victims with meaningful, respectful public forumsin which they can tell their stories and receive a degree ofacknowledgment, central to the fifth aim, also comes into conflictwith some of the basic commitments of legalism. Criminal trialsusually focus on the interests of the defendants. A respectablecriminal trial cannot be a platform for victims to tell their storiesin an uninterrupted fashion. Since the testimony of victims isinstrumental for proving indictments, it is most often subject tointerruptions and vigorous cross-examination. As a result, a typicalcriminal procedure can be quite an adversarial experience forvictims. This is true in spite of a recent expansion of the role ofvictims in international criminal law. In fact, an undue expansion ofthat role creates the grounds for criticizing international criminallaw for abandoning some of its legalist underpinnings (see, forexample, Rauschenbach and Scalia 2008).

Finally, the need to set up a functioning bureaucracy, so importantfor the creation of public trust and the restoration of politicalnormalcy, can clash with the desire for accountability inherent in thefirst two goals. When most officials implicated in past crimes arepurged or “lustrated”, few competent administrators remainto do the work of government. Such a competence gap may, in turn,undermine political stability, economic viability, and publictrust—all crucial factors in a successful transition. Indeed,worries about the tradeoff between accountability and thefunctionality of government have led many polities to either hedge orgive up their lustration policies mid-stream.^[6]

Almost every transition since World War II displays these tensions.The Nuremberg trials, often viewed as the pinnacle of legalism, were,nevertheless, based onex post facto charges (see Bass 2002:Ch. 5). The Spanish transition to democracy was so fragile that ithad to commit itself to a “pact of forgetting”—morethan three decades of silence about abuses committed during the civilwar and under Franco. Historical justice and the need to preserve thepeace came into conflict, with the latter receiving precedence untilthe 2008 Law of Historical Memory reversed the trend (see Tremlett2006). In South Africa, de Klerk's National Party threatened civilwar if the African National Congress insisted on war crime trialsagainst apartheid officials. The celebrated Truth and ReconciliationCommission, with its amnesty-for-truth arrangement, was the resultingpolitical compromise meant to avoid both punishment and impunity. TheANC's demand for retributive justice went unheeded (to the outrage ofmany, including the family of Stephen Biko, who unsuccessfully suedthe Truth Commission in the South African Constitutional Court)because heeding it would have eliminated the chance for a democraticSouth Africa (for an overview see Meredith 1999). The InternationalCriminal Tribunal for Rwanda, operating in Tanzania, netted some ofthe Genocide's ringleaders. But Rwanda was not able to apply rigorouscriminal responsibility to all those who participated in the murders.Doing so would have taken several centuries. Thus a system oftraditional justice,Gacaca, was devised. These makeshift“Grass Courts” failed to live up to western standards oflegalism (the judges were not professionals, rules of evidence werenot followed) and it failed to produce satisfying punishments. But itdid provide a platform from which at least some of the crimes wereadmitted and acknowledged, and it did manage to empty the Rwandanjails which contained hundred of thousands of prisoners. In thetension between practical functionality and retributive justice,Rwanda nodded to the latter, but eventually focused on the former.The policy of de-Baathification carried out negligently in theaftermath of the second Gulf War, combined with the thoughtlessdisbanding of the Iraqi army ended up fueling the anti-Americaninsurgency there, in addition to draining Iraq of many of those whohad crucial administrate skills and experience. Here too, thecommitment to retribution and the desire to create trust by“cleaning out” those associated with the previous regimeactually ended up bringing about the opposite effects by furtherdestabilizing the country and harming its bureaucratic competence at avery sensitive time (see Pfiffner 2010).

1.2 Peace versus Justice

Post war transitions are characterized by the co-existence ofpotentially conflicting, yet politically and morally important,goals. As we have seen, some of these are about doing justice for pastabuses, while others are concerned with consolidating stability andcreating functioning, competent institutions. The uneasy co-existenceof these aims - the fact that they are all dearly held, and yet cannotquite be fully realized together—points to a significant tensionbetween considerations of justice and social utility afterwar. Needless to say, this tension exists in ordinary political lifeas well. The friction between what is morally called for and the wayin which leaders must sometimes act for the overall benefit of theirsubjects has always been important to our understanding ofpolitics. Machiavelli articulates it most famously when he argues thata Prince might have to learn how “not to be good” in orderto act in the best interest of his polity (Machiavelli,ThePrince, Ch. 15). Sartre provides the dramatic depiction andgives the problem its most familiar name in his play Dirty Hands. Oneof his protagonists puts it starkly: “Well, I have dirtyhands. Right up to the elbows. I've plunged them in filth andblood. But what do you hope? Do you think you can governinnocently?” (Sartre, “Dirty Hands,” Act V). Themost important contemporary philosophical treatment appears, ofcourse, in Michael Walzer's famous article “Political Action:The Problem of Dirty Hands” (Walzer 1973). In transitionalcontexts this tension is usually labeled the “peace versusjustice” dilemma (see, for example, Freeman 2010 and Mihai2010)—denoting that the demands of quiet and stability may wellrequire compromising the morally important demands of retributivejustice and accountability. Thus, for example, it was wrong to allowapartheid murderers to get away with murder during South Africa'stransition. But if they had been tried as war criminals, South Africawould have most likely erupted into civil war. Similarly, it was wrongto bury Spain's history of violence for more than thirty years afterthe end of Franco's dictatorship. But, had this history been excavatedearlier, Spain may well have failed to develop into the liberaldemocracy it is today.

Viewing the peace vs. justice dilemma as a variation of theproblem of dirty hands helps us better understand the nature of thetensions at play after war. Properly described, peace vs. justice isnot a debate between proponents of a Kantian commitment to fullretributive justice and cynical realists who are willing, in theinfamous words of the Cambodian Prime Minister Hun Sen, to “diga hole and bury the past” (quoted in Mydans 2010). Rather, thetension is more properly viewed, like the problem of dirty hands, as aparadox: officials as well as citizens in transitional countriesconcurrently hold two powerful yet often contradictory moralintuitions: that in order to establish a legitimate, functioning civilsociety one must do justice for the crimes of the past and that tosecure quiet, stability and a functioning government it is sometimesnecessary and morally acceptable to leave past crimes and pastcriminals alone. An analogy to another such paradox may be helpful inillustrating the difference between a paradox and a debate. Theproblem of moral luck famously delineated by Thomas Nagel and BernardWilliams denotes a paradox about how we make judgments about praiseand blame: we tend to think that people should be praised or blamedonly on the basis of what they can control, and yet we regularlypraise and blame people on the basis of the results of theiractions—even if these are beyond the control of the agentsinvolved (Nagel 1979 and Williams 1981). A drunk driver who got homesafely and a drunk driver who hit a child on the way home took thesame risk getting into their cars. The first intuition would requiretreating them similarly. The second recommends more severe punishmentto the driver actually involved in an accident.

A moral debate can, in principle, be settled by a superior set ofarguments. A paradox can only be described. Caught in the paradoxbetween peace and justice we might end up emphasizing one kind ofintuition over the other after war. But this is not the same aswinning a moral argument and doing away with a discreditedposition. The Spaniards emphasized the need for stability over theneed for accountability for a period of thirty years. Then, when theywere confident enough that stability had been consolidated, theyshifted their emphasis. The Rwandans, after conducting nominalcriminal trials in Tanzania, made a similar decision and cleared thedockets by means of theirGacaca courts. Rwanda is now morequiet and stable. But such quiet, as commentators like PhilipGourevitch have noted (see, most recently, Gourevitch 2009), is anuneasy one as long as survivors are resentful about failure to bringperpetrators to justice. Stated differently, there is no real“debate” between peace and justice after war, as somescholars and NGOs claim, only a continuing negotiation that, at anygiven point, will lean towards one of these intuitions. The best wecan do is understand their co-equal status, settle on a policy thatlies on the continuum between them, and constantly reevaluate.

In spite of the fact that the peace versus justice tension is merely aspecific manifestation of the problem of dirty hands, there is animportant distinction that must be observed: while the tension betweenjustice and social utility is part of the political life of anyconsolidated democracy, it is central and definitive of political lifeduring transitions. In consolidated democracies, such tensions can bealleviated by legal institutions and traditions that embodyconclusions about how to manage the requisite tradeoffs betweenjustice and social utility (these include a constitution, a body ofaccepted constitutional jurisprudence, a respected high court withpowers of judicial review, etc.). Part of the role of suchinstitutions and traditions is to provide guidance about whichtradeoffs would seem most justifiable given a comprehensiveinterpretation of the state's legal and political history. Buttransitional times are exactly the periods in which such institutions,traditions, and interpretive principles are first being set out. Whenthe argument arose about abuses of executive power in the UnitesStates following the September 11, 2001 attacks, that debate couldtake place on the background of a history of executive power grabs andthe responses to them (Jefferson's requisitioning of funds for themilitary without congressional approval and Lincoln's suspension ofhabeas corpus during the civil war come to mind). In atransitional context, that long and important political discussion ismissing. More precisely, the very point of the transitional period isto set up the institutions and methods responsible for having thatdebate. The upshot of this predicament is two fold: it is harder fortransitional societies to resolve peace versus justice decisionsbecause the traditions and institutions so important for navigatingthese questions are not yet present. At the same time, the very act ofcreating of such institutions inevitably creates situations wherepeace and justice must clash: the need to quickly set up a competentcourt and police systems to allow for stable government may wellrequire hiring administrators tainted during the tenure of theprevious regime; the need to attract foreign investors and maintainpeace in the streets may require some compromises on the extent andlength of criminal proceedings against past perpetrators, and soforth.

To recap, the tension between peace and justice is especiallypronounced in transitional settings because creating the basicinstitutions of governance is more likely to raise it, and because theguidance available in settled context from the existence of suchinstitutions is missing. To this dual explanation we should add thatthe conflict between peace and justice is further heightened intransitional situations because the political stakes are uniquely highduring such moments. If a transitional society cannot consolidatepeace and functioning government, the very effort to create a decentnew state suffers shipwreck. This kind of fragility, where the entirepolitical project is at stake, is more likely to float peace versusjustice dilemmas than a specific crisis in a consolidated democracy.Such localized crises typically implicate localized endeavors, not theexistence of the political system itself.

2. War Crime Tribunals

2.1 Historical Background

The 20^th century's most famous and probably mostsignificant war crime trials were held in Nuremberg, Germany after theend of World War II.^[7] Between 1945–1949 the United Statesand its allies held a series of 13 trials. The first, and most famousof these, involved the prosecution of senior surviving Nazi officialsincluding Hermann Göring, Joachim von Ribbentrop, Julius Streicher,Rudolf Hess and Albert Speer. Defendants in the other 12 trials, whichtook place between 1946–1949, included doctors, jurists,industrialists, and other key stake holders in the Nazi state.

Initially, it was not clear that the allies would put theirdefeated enemies on trial at all. The creation of the first NurembergTribunal was preceded by a long debate, especially fierce in theUnited States. Hard liners, represented most vocally by AmericanSecretary of the Treasury Henry Morgenthau Jr., advocated the summaryexecution or forced removal of the entire Nazi chain of command andthe destruction of Germany's industrial capacities. On the other hand,Legalists, led by Secretary of War Henry Stimson, insisted onaffording the Nazis fair trials that would honor American proceduralprotections. The United States fought the war in defense of politicalfreedom, the Legalists insisted. Such freedom depends on upholding theideals of the rule of law. These ideals, in turn, require theindividualization of guilt and giving defendants a fair chance toanswer the charges against them. Germany, Stimson warned, must not bepunished en-masse; such collective punishment would only serve toincrease resentment and may well plant the seeds for anotherwar. Instead, the careful and fair employment of the courts wouldallow the Germans to “internalize” their guilt. As Stimsonput it:

…punishment is for the purpose of preventionand not for vengeance. An element in prevention is to secure in theperson punished the conviction of guilt” (for a summary of thisdebate see Bass 2002: 152–161).

On November 21, 1945 Robert H. Jackson, Chief of Counsel for theUnited States at Nuremberg, began the case for the prosecution withthe following, now iconic words:

The privilege of opening the first trial in historyfor crimes against the peace of the world imposes a graveresponsibility. The wrongs which we seek to condemn and punish havebeen so calculated, so malignant, and so devastating, thatcivilization cannot tolerate their being ignored, because it cannotsurvive their being repeated. That four great nations, flushed withvictory and stung with injury stay the hand of vengeance andvoluntarily submit their captive enemies to the judgment of the law isone of the most significant tributes that Power has ever paid toReason. (Jackson 1945)

The prosecution team at Nuremberg had originally planned toconcentrate on charges of aggressive war rather than on Germany'swholesale destruction of Europe's Jews. Much of the initial legal workrevolved around the creation of a jurisprudence of conspiracy thatwould allow the conviction of the entire Nazi leadership. But theliberation of the Dachau and Bergen-Belsen concentration camps, andthe horrific evidence discovered there, left the allies with littlechoice but to incorporate charges of crimes against humanity intotheir trial strategy (Bass 2002: 180).

The defendants' complaints about “victors' justice”and the retroactivity of the charges not withstanding (more on this tofollow), the Nuremberg trials still stand out as “legalism'sgreatest moment of glory” (Bass 2002: 203). In spite of intensepolitical pressure by Stalin, Churchill, and powerful figures insidethe United States to dispense with trials all together, and in spiteof the unprecedented nature and magnitude of the crimes, the judges atNuremberg presided over a remarkably cool and orderly procedure. Forthe first time in history, senior political leaders were indicted andtried for “crimes against humanity.”

The tribunals also established important principles of internationaljustice, such as the responsibility of heads of state, the rejectionof the infamous “I was just following orders” excuse, theweakening of retroactivity as a defense against crimes of massatrocity, and the right of war criminals to a fair trial.^[8] In addition to theseimportant legal achievements, Nuremberg also established the trial asan invaluable instrument for creating a credible, lasting historicalrecord of human rights abuses.

The Nuremberg trials were succeeded, in the spring of 1946, by theMilitary Tribunal for the Far East, held in Tokyo. Twenty-eightmembers of Japan's military and political leadership, including formerPrime Ministers, War and Navy Secretaries, generals, diplomats, andsome economic luminaries were indicted for crimes against the peace.Twenty-five of the defendants were convicted. Seven were executed, andthe remaining 18 received prison sentences ranging between 7 years anda life sentence.

The Tokyo proceedings never achieved the prominence of the Nurembergtribunals. Explanations for their relative obscurity include theunavailability of some of the trial records, the fact that theperpetrators were not household names in the west, and the allies'embarrassment about disagreements between the judges on using thedeath sentence, and on the fairness of the proceedings (for moredetail see Futamura 2008 and Totani 2008).

In spite of the ambitious standards of accountability for massatrocity set at Nuremberg and Tokyo, the actual practice ofinternational criminal justice went into a prolonged lull once theCold War began. The sharp ideological differences between thesuperpowers made the cosmopolitan ideals underlying such trials lesspersuasive. Concerned that war crime prosecutions would become onemore arena for political conflict, neither the Americans nor theRussians pursued them. The lull ended with the collapse of the SovietUnion and the end of the Cold War, and the first significant wartribunals thereafter were established by the United Nations in the1990s—the ad hoc International Criminal Tribunal for the formerYugoslavia at The Hague (ICTY), in 1993, and the ad hoc InternationalCriminal Tribunal for Rwanda in Tanzania (ICTR), in 1995.

The ICTY got off to a rocky start. Tribunal president TheodorMeron described it as “little more than an ideal” at itsinception in 1993. The trial, a symbolic “expression ofoutrage”, served more as a salve for international guilt thaninstrument of international justice. Financial resources wereinitially so meager that the court could not afford to pay more than afew months worth of rent and salaries (Bass 2002: Ch. 6). But inrecent years, the tribunal has come into its own. While the historictrial of Slobodan Milošević could not be completed because of thedefendant's death, the ICTY indicted the first President of RepublikaSrpska (Bosnia and Herzogovina), Radovan Karadžić, in July 2008. He iscurrently conducting his defense. Additionally, Ratko Mladić, themilitary mastermind of the siege Sarajevo and the massacre ofSrebenica, was arrested in northern Serbia on 26 May 2011 and iscurrently on trial in the Hague. Biljana Plavšić, another formerPresident of Republika Srpska, was convicted of war crimes in2002.

The final trial for the ICTY has recently commenced. Goran Hadžić,who went from warehouse worker to rebel Serbian president, wasarrested in northern Serbia on July 20, 2011 after seven years as afugitive. He has pled not guilty to “involvement in the murderof hundreds of Croats” as well as large scale expulsions. He isthe last of the 161 suspects indicted by ICTY to face trial. Hadžić,Karadžić, and Mladić were all arrested in Serbia after years on therun from international justice. The impending terminus of the court'sactivities underscores the transitory nature of such ad hoc war crimestribunals.The court's annual budget is now upwards of $310 million andit employs more than 1,100 people from 82 countries. The ICTY hasconvicted 64, acquitted 13, sent 13 for trial in domestic courts, andwithdrawn indictments against 36, including 16 who died after beingcharged. Eighteen suspects are currently being tried, while 17 areappealing their convictions.

The tribunal often faced, and to some extent still faces, accusationsof inefficacy. Ad hoc tribunals lack their own coercive power and relyon the support of individual nation-states. Little progress wasinitially made in the 1990s towards the capture of important warcriminals in the former Yugoslavia. Yugoslavia was not then in a trulytransitional state such as found in Germany or Japan at the end ofWWII, as the Serbian government of Slobodan Milošević, who hadsupported the Bosnian Serb commanders, remained in power. There was,as in other regions in which war crimes have occurred, hostility tooutside monitoring and extranational justice. This was also seen to alesser extent in Croatia. However, national (or domestic) justiceproved itself to be overwhelmingly corrupt, biased, incompetent, andinadequate.

Only after Milošević's fall from power did the new Serbian governmentbecome more amenable to cooperating with demands for internationaljustice. The rebel Serbian leaders did and still do retain thesympathies of much of the Serbian population. External pressure pointsproved to be effective, as Serbia's government responded positively toa carrot and stick approach known as the policy ofconditionality. Serbia's European Union (EU) membership applicationwas blocked until Serbia complied and arrested the trio of Mladić,Karadžić, and Hadžić. The principle behind conditionality does notdiffer significantly from the rationale behind sanctions regimes, suchas those employed against apartheid South Africa, Rhodesia, and(currently) Iran.

The ICTR, located in Arusha, Tanzania, can also boast substantialachievements. The court has issued the first ever genocide convictionby an international tribunal, as well as the first conviction in whichrape was considered a crime of war. Given the massive domesticprosecution ofgénocidaires by the Rwandan authorities, theICTR has primarily focused on the indictment of “bigfish”—senior level suspects involved in the design andplanning of the genocide. These indictments have resulted in genocideconvictions of Rwanda's former Prime Minister, Jean Kambanda, andquite a few cabinet members.

In addition to securing significant convictions and setting legalprecedents for the practice of international humanitarian law, theICTY and ICTR were also successful in creating detailed records ofatrocities. In this, both tribunals continued the legacy of theNuremberg Tribunals, which, as mentioned earlier, aimed not merely atthe conviction of the guilty but also at reliably documenting thehorrors for posterity.^[9]

A complaint consistently made against the ICTY and the ICTR has beenthat these tribunals do not operate on the sites where the crimesbeing investigated took place. This fact, so the criticism goes,creates a disconnect between the people who suffered throughout thewar and the process in which their suffering is addressed. The attemptto address such criticisms has resulted in the creation of a ratherinnovative form of international justice—the Internationalizedor Hybrid Courts. These bodies, which have been operating in BosniaHerzegovina (since 2005), Kosovo (since 2000), Cambodia (since 2003),Sierra Leone (since 2002), East Timor (between 1999–2005), andLebanon (since 2007), employ both international and local jurists andadjudicate on the basis of a mixture of national and internationallaw.^[10] Unlikethe Nuremberg and Tokyo tribunals none of the ad hoc tribunals such asthe ITCY and ITCR are empowered to impose the death penalty, though nocentralized prison exists to house those convicted.

Among the criticisms levied against the tribunals is their allegedWestern bias. The Special Court for Sierra Leone, which in April of2012 convicted former Liberian leader Charles Taylor of aiding andabetting war crimes, was funded almost exclusively by the UnitedStates, United Kingdom, Canada, and the Netherlands. The internationalcourts and the human rights which they embody are Western liberalconcepts with far less resonance in other parts of the world. Somehave questioned the tribunals are too focused on Africa, as allpending cases currently are Africa-related. The Africa Union hasaccused the ICC of being an Euro-American neo-colonial enterprise,though this may be taken with a certain pinch of salt, as many of theleaders within the African Union have good reason to believe that theymay one day be called to the defendant's docket.

Perhaps the most significant development in international criminaljustice since the Nuremberg trials has been the establishment, by theRome treaty in 1998, of the permanent International Criminal Court(ICC) in The Hague. By 2011, 114 nations had ratified the RomeStatute. The court has jurisdiction over serious crimes (genocide,crimes against humanity, aggression) committed after July 1, 2002(when the statute took effect), by a national of one of the statesthat are party to the Rome treaty. It also has jurisdiction overcrimes committed on the territory of such state parties, or when theUN Security Council refers a specific case to it. The UN SecurityCouncil is authorized not only to refer cases to the court but also toask its prosecutor to suspend proceedings. Nevertheless, SecurityCouncil members Russia, China, and the United States have not ratifiedthe statute. This position is shared by several other major countriessuch as India, Indonesia, and Israel. Within the next several years,tribunals for Sierra Leone, Rwanda, the former Yugoslavia, Lebanon,and Cambodia will close, leaving the ICC as the sole institution ofinternational criminal justice.

Importantly, the court's authority is residuary: it acts only ifmember nations cannot or will not.

Most of the cases before the ICC involve ongoing conflicts. This hasrequired the establishment of field offices in order to assist ininvestigations and the collection of evidence, as well as to conductoutreach operations to local populations. While there are immensepractical difficulties in gathering evidence and enforcing arrestwarrants in active war zones, senior ICC officials have claimed thattheir real time involvement has increased deterrence.^[11]

So far the ICC has taken up cases of war crimes committed in Uganda,the Congo, and the Central African Republic. All three countries havereferred these cases themselves. In addition, the UN Security Councilhas referred the case of Sudan, which is not a party to the Rometreaty. After conducting an investigation into the referral, thecourt's prosecutor has recently issued an indictment against Sudan'sPresident, Omar al-Bashir.^[12] A decade after the courts creation, 22arrest warrants have been issued, and five suspects currently are incustody. Recently (as of July 2012), the United States has started toapply pressure on President Paul Kagame of Rwanda to end hisassistance to rebel factions in Congo renowned for their egregious warcrimes. The United States indicated that there might be a reduction inmilitary aid to Rwanda, but also that Kagame personally may faceindictment and (ultimately) prosecution at the ICC.

One of the most innovative features of the ICC is the fact that itgives a significant role to victims in its proceedings. Victims cansend information directly to the court's prosecutor, they can requestthe opening of a preliminary investigation, they can appear before thecourt's pre-trial chamber when it deliberates on whether to open afull blown investigation into a case, and, most significantly, theycan ask to present their position during the trial itself. Article 68(3) of the ICC Statute reads:

where the personal interests of the victims areaffected, the Court shall permit their views and concerns to bepresented and considered at stages of the proceedings determined to beappropriate by the Court and in a manner which is not prejudicial toor inconsistent with the rights of the accused to a fair and impartialtrial. Such views and concerns may be presented by the legalrepresentatives of the victims where the Court considers itappropriate, in accordance with the Rules of Procedure and Evidence.(seeOther Internet Resources for link to the fulltext of the Rome Statute)

The exact jurisprudence regulating victims' involvement is still being developed. Yet, it is already clear that the Rome statute gives them a far greater role in the international criminal process than they have had under traditional tribunals.

Despite the fact that the United States played a major role in thenegotiations surrounding the creation of the ICC, the U.S. initiallyvoted against the Rome Statute in 1998, before eventually signing inDecember 2000.^[13] President George W. Bush revoked theUnited States' signature to the Rome Statute, citing concerns that thecourt could be used for political prosecution of American citizens,particularly American service members who were serving abroad. TheU.S. Congress passed several bills during the Bush Administrationdesigned to shield American citizens from prosecution by the ICC. TheUnited States has also threatened to cut off foreign aid to countriesthat have failed to sign Bilateral Immunity Agreements with theU.S.

Although the Obama administration has been much less hostile towardsthe ICC, going so far as to co-sponsor a UN Security Councilresolution which called for the ICC to investigate alleged crimesagainst humanity committed by Muammar Gadaffi, the United States hasyet to join the ICC.^[14] The United States continues to makeimmunity for U.S. citizens a prerequisite to their ascension to theICC.

2.2 Criticisms of war crime tribunals

The employment of war crime tribunals has always beencontroversial. In what follows some of the central criticisms of suchtrials are examined. We will focus on substantive rather thantechnical concerns. “Technical concerns” is understood asthe lack of resources, the reluctance of the international communityto provide material assistance (in direct funds or in apprehension ofsuspects), the ability of defendants to destroy evidence, thedeplorable condition of the legal class in war torn countries, andproblems of translation and common language. While these certainly aresignificant obstacles (as it was pointed out earlier, the operation ofthe ICTY was almost undermined by such difficulties), they do notchallenge the rationale for using trials. The objections taken uphere, on the other hand, represent concerns that call into questionthe coherence and fairness of the criminal courts as instruments ofpolitical transition.

2.2.1 Victor's Justice

According to some critics, post war tribunals, far from expressing acommitment to the rule of law, are merely a charade in which winnerspunish losers for the damage and suffering the war brought about. Thiskind of cynicism about doing justice after war (and about the role ofjustice in politics more generally) has ancient roots. In hisHistory of the Peloponnesian War, Thucydides (B.5 Ch.17)imagines one of the Athenian generals offering a sobering realitycheck to a Melian politician who does not understand why Athens mustconquer his tiny, politically neutral island:

we both alike know that in the discussion of humanaffairs the question of justice only enters where there is equal powerto enforce it, and that the powerful exact what they can, and the weakgrant what they must.

Hermann Göring made a similar observation in a conversation withNuremberg's prison psychiatrist: “the victor will always be thejudge, and the vanquished the accused” (Bass 2002: 8).

The claim of victor's justice is difficult to dismiss.^[15] After all, had theAllies lost the war, many of their senior military and politicalleaders would have gone on trial for the firebombing of Japanese andGerman cities. Curtis LeMay and Robert McNamara have publicly admittedas much.^[16] Andyet it is worthwhile noting, with Gary Bass, that there is adistinction between the circumstances under which a tribunal iscreated and how decently and fairly it operates. In other words, atribunal that was set up after victory in order to punish the sidethat lost, might still either succeed or fail to follow fairprocedures. And in so far as this is true, the retribution of somevictors may be preferable to that of others. As Bass writes: “itis victory that makes justice possible but the fairness of the processis what makes it justice” (Bass 2002: 329). And, he adds, eventhough we may be cynical about the fact that Americans are puttingGermans on trial after they have defeated them, most of us, if given ahypothetical choice, would still prefer to be tried by an Americanrather than a Nazi court, because we assume it would be fairer (for auseful series of essays on the Rwandan transition see Strauss andWaldorf 2011). Simply imagine the kind of charges the Nazis wouldbring against their defeated enemies: most likely, they would have notsufficed with indicting the allies for the firebombing of German andJapanese cities; they might also have charged then with protectingJews or with miscegenation, and perhaps punished them severely forthese charges. While an indictment for firebombing would have beensubstantially sound, the latter accusations would have been based,exclusively, on the Nazis warped racial theories. In other words, somevictors' justice can be substantively flawed. Here, then, is the mainadvantage of allied over Nazi victor's justice: the Americans andtheir partners prosecuted their defeated enemies for crimes thatreally were crimes (for further discussions of victors' justice seeMinow 1998; Chang and Barker 2001; Peskin 2005).

2.2.2 Retroactivity

A second important criticism of post war trials is that they holddefendants responsible for acts that were not prohibited at the timethey were committed.

Many of the Nazi defendants at Nuremberg argued that no existing lawsor international standards banned their conduct during the war.Consequently, they argued, there can be no legal basis for prosecutingthem. Such claims are based on a fundamental precept of the rule oflaw:Nullum Crimen, Nulla Poena Sine Lege (no crime, nopunishment without a legal prohibition). The main strategy used tocounter these arguments at Nuremberg was “positivistic”:prosecutors strained to find sources in existing international lawthat did forbid aggressive war, and then moved to associate many ofthe other crimes for which the Nazis were accused with the waging ofsuch war (Minow 1998: 33). A related difficulty arose when theprosecution looked for a legal doctrine that would allow them toconvict a large group of people for belonging to the Nazi warmachine. Here, too, a creative positivistic solution was found: One ofStimson's aids, colonel Murray Bernays, devised the idea that theNazis would be tried as part of a criminal conspiracy. The advantageof such a strategy was that it required nothing more than theconviction of specific organizations of the charges (the SA, SS,Gestapo among others) in order to hold all their membersresponsible. As Bass puts it:

once these organizations had been convicted, anymember of them could be swiftly punished: instead of provingindividual guilt… [prosecutors] would only have to provide thatthe defendant had been a member of a criminal group activities. (Bass2002: 171; I am grateful to Thomas Pogge for thispoint)

The severity of the problem of retroactivity decreased after theNuremberg tribunal established the precedent that there was no needfor a highly specific prohibition in order to be held responsiblebefore an international criminal court. And yet, the tribunals forYugoslavia and Rwanda still faced some problems of retroactivity whenit came to deciding whether ethnic cleansing constituted genocide andwhat kind of intent was required for a genocide conviction (Minow1998: 34–35).

While prosecutors in Nuremberg settled on a positivistic strategyfor countering the claims of retroactivity made by the defendants,another possibility for rejecting such arguments should be mentioned.This alternative is based in the “natural law” tradition.On this view, the response the Nazi defendants should have been givenis, quite simply, that there are things that one does not do, or canexpect severe punishment for doing, whether they are explicitlyforbidden or not. Whether such severe actions defy “the morallaw” to use the somewhat antiquated language of the classicalnatural lawyers, or whether they simply offend fundamentalsensibilities of any civilized human being, the upshot is the same: atthe extreme reaches of human behavior illegality does not necessarilydepend on a prior legal prohibition. It was this kind of argument thatthe lead British prosecutor in Nuremberg, Hartley Shawcross, had inmind when he exclaimed in response to one of the iterations of theretroactivity complaint:

I suppose the first person ever charged with murdermight have said: “now see here. You can't do that. Murderhasn't been made a crime yet”. (Persico 1994:138)

2.2.3 Selectivity

A third important complaint against war crime tribunals maintainsthat they frequently fail to indict all of those who were involved incommitting atrocities. According to this charge, courts find it easierto prosecute lower level officials and military personnel, oftenleaving the more senior figures who devised the violent policies (butdo not have actual “blood on their hands”) untouched(Minow 1998: 40–41). To the extent that this complaint is wellfounded it is devastating, as it suggests that war crime tribunals donot result in a full or coherent exercise of retributive justice (fora comprehensive account see Cryer 2005). The principle of“Command Responsibility” (CR) originally devised atNuremberg, and used extensively by the ICTY, has been employed, quiteeffectively, in order to counter complaints of selectivity. CR allowsprosecutors to indict senior officials exclusively on the basis oftheir military or political leadership role (given the duties ofsupervision and control attached to that role).

Thus, the ICTY has been able to convict Serbian officers for warcrimes because they did not prevent or curtail activities in whichtheir troops were engaged. In an especially striking expansion of CR,a Bosnian Croat regional commander, Tihomir Blaskic, was convicted bythe trial chamber of the ICTY of murder and other crimes againsthumanity, for atrocities that took place in the village ofAhmichi. The charges did not allege direct involvement or even turninga blind eye to the activities of subordinates, but, rather, focused onBlaskic's failure to investigate after the massacre was brought to hisattention. His unwillingness to look into the events was equated bythe court with responsibility for direct killing. In 2004 the appealschamber of the ICTY rejected this interpretation of CR and overturnedthe relevant part of the conviction.

While CR can be instrumental for moving up the chain of command, italso comes into conflict with the legalistic premise underlying warcrime tribunals. A criminal trial traditionally establishes individualresponsibility by presenting direct evidence against the defendant. CRallows conviction and punishment based on a philosophical constructrather than on the garnering of such evidence. The construct, roughlyspeaking, is that certain roles come with built in accountability forthe actions of others, whether or not the individual who holds therole was aware of these actions. Criminal law doctrine is, to say theleast, suspicious of such a separation between intent and culpability,especially when it comes to very serious offenses (lesser offenses canbe established by proving the defendant was reckless or indifferent).This tension points to a problem at the heart of internationalcriminal law: does the unique nature of mass atrocity, whereinnumerous people harm others with differing degrees of acquiescence anddirection from a large bureaucratic class, really lend itself to thelegalistic commitment to individualizing guilt on the basis of directevidence? Or do the distinct features of such crimes require relaxingour standards of individual responsibility so as to implicate theentire state structure that made the atrocities possible?^[17] If the latter, itmay be difficult to hold fast to the justification of such trials asexpressing a firm commitment to legalism and the idea of the rule oflaw.^[18]

Other significant (if less conceptually interesting) criticisms of theinternational criminal courts hold that they do not focus sufficientlyon the suffering of victims, concentrating, instead, on establishingthe guilt of perpetrators),^[19] that the proceeding tend to becometechnical and tedious, thus trivializing the horrors beingdiscussed,^[20]that there can be a discrepancy between the (Western) cultural normscentral to legalism and the local traditions of the society in whichatrocities took place,^[21] and that, in light of the repeatedoccurrence of genocide in the 20^th century, the practice ofinternational criminal law does not show great promise ofdeterrence.^[22]Leaders, such as Bashar al-Assad and Omaral-Bashir, who have the backing of major powers, have virtualimpunity. Of course it is important to prosecute former heads ofstate, so as to demonstrate that political seniority is no guaranteeof immunity from justice. The international tribunals serve apedagogical purpose, drawing attention to pertinent issues such aschild conscription.

3. Truth Commissions

3.1 Historical Background

The structural and political shortcomings of war crime trials, asoutlined in the previous section, have led policy makers in war torncountries to turn to other measures of transitional justice. The mostimportant among these is the non-judicial truth commission.

Priscilla Hayner (2002), in her landmark book on truth commissions,enumerates four characteristics typical of these bodies:

1. They deal with the past
2. They investigate continued patterns of abuses and not specific cases
3. They operate for up to two years and then submit reportssummarizing their findings and,
4. They are usually official bodies sanctioned by the state.

These commissions, Hayner continues, most often have some or allof the following goals: unearthing, clarifying and formallyacknowledging past abuses, responding to the needs of victims, helpingcreate a culture of accountability, outlining institutionalresponsibility and possible reforms, advancing the prospects ofreconciliation and reducing conflict over the past (Hayner 2002:24).

While truth commissions have fewer coercive powers than courts (theycannot compel governments to carry out their recommendations, theyhave no authority to punish etc.), their mandate for investigating thebroader pattern of abuses, and their tendency to put the victims atthe center of their proceeding, gives these bodies a great degree ofmoral credibility and legitimacy.

The work of South Africa's Truth and Reconciliation Commission(hereafter TRC) has sparked a great deal of interest in the use oftruth commissions after war. The celebrity of its chair, Desmond Tutu,the massive scale of the public hearings it held, the intensive mediacoverage, and its controversial amnesty-for-truth mechanism, generateda great deal of international curiosity. Ever since the TRC completedits hearings and published its report, nations facing a transition todemocracy have consistently asked themselves whether they too shoulduse truth commissions to confront past abuses. Some scholars even goso far as to say that the truth commission has now replaced criminalprosecution as the most important norm of international justice (see,for example, Ben-Josef Hirsch 2007).

While the TRC has become paradigmatic of truth commissions, it isworthwhile noting that it was not the first such body. Argentina,Chile, and El Salvador all employed relatively effective truthcommissions during the 1980's and early 1990's.^[23]

These efforts provided both inspiration and valuable lessons for thedesigners of the South African body.^[24]

In Argentina, a truth commission was set up to investigate the abusescommitted by the military junta during the country's “dirtywar” (1976–1983). It is estimated that up to 30,000suspected “subversives” were“disappeared”—abducted, tortured and disposed ofsecretly—by security forces during those years. Unlike the SouthAfrican TRC, the Argentinean body, officially named “NationalCommission on the Disappearance of Persons”, did not hold publichearings. The commission also lacked the authority and incentivestructure to compel cooperation from the military. And yet, it wasable to produce a substantive report. More than 7000 statements weretaken, 1500 of which were given by survivors of military detentioncamps. The commission focused on locating and exposing militarydetention and torture centers. Much of the evidence it gathered washanded over to prosecutors, eventually aiding in the convictions ofseveral high-ranking officers. The truth commission's report, titledNever Again (Nunca Más), was published in 1984 andhas become one of the best-selling books in Argentinean history.

Seven years later, Chile's National Commission on Truth andReconciliation published a report documenting human rights abusescommitted by the Chilean army during General Augusto Pinochet's17-year reign. As in Argentina, Chile's security forces practicedroutine torture, abductions and extrajudicial executions. The abuseswere especially severe in the first few years of the dictatorship. In1978 Pinochet issued a sweeping amnesty order, protecting all membersof the security forces. This amnesty created a complex constitutionalenvironment for the truth commission. The commission, chaired byformer senator Raul Retting, consisted of an equal number of Pinochetsupporters and critics. Its mandate was defined in relatively narrowterms, focusing on executions, disappearances and cases of torturethat resulted in death (leaving out a large number of torturesurvivors). Like its Argentinean counterpart, the commission had noway to compel members of the security forces to testify. TheCommissioners looked into 3400 cases and issued an 1800 page report inFebruary of 1991 strongly (and, significantly, unanimously) condemningPinochet and his generals. The impact of the report was weakened by aseries of armed attacks carried out by left leaning militants shortlyafter its publication. In spite of the limited public attention itreceived at the time, the report was instrumental in creating areparations program for the relatives of Pinochet's victims. Thecommission's work was also useful in providing evidence to support theSpanish extradition request that eventually led to Pinochet's arrestin Britain. Pinochet was later returned to Chile, and died before hecould be convicted of any crimes.

El Salvador's truth commission was probably the least successfulof the three. The commission was created to investigate abuses carriedout in the course of the civil war between government forces and FMLNguerrillas. According to some estimates, the 12-year war(1980–1992) claimed the lives of 75,000 citizens. As inArgentina and Chile, the military engaged in executions, torture, andabductions, in addition to large-scale massacres. The El Salvadoriancommission operated for 8 months. Appointed by the Secretary Generalof the United Nations, its members included former Colombian PresidentBelisario Betancur, former President of the Inter American Court ofHuman Rights Thomas Buergenthal, and former Minister of ForeignAffairs of Venezuela Reinaldo Figueredo Planchart. The animosity anddiffidence between the former combatants was such that no Salvadorianswere allowed to serve as commissioners.

The commission gathered testimony on more than 7000 cases ofsevere human rights violations. Its final report, titled “FromMadness to Hope”, outlined a set of harsh conclusions against 40government and military officials and stated that the vast majority ofatrocities had been committed by government backed security forces(rather than by FMLN fighters). Very shortly after the report'spublication, a national amnesty law was passed, rendering many of thecommission's recommendations irrelevant. However, the report washelpful in shaming and eventually removing from service some of themilitary officials accused of especially egregious abuses.

Three years after the release of El Salvador's report, On April 15,1996, Archbishop Desmond Tutu, the head of South Africa's AnglicanChurch, addressed a crowd gathered at East London's city hall.

We are charged to unearth the truth about our dark past,

he told his listeners,

and to lay the ghosts of that past to rest so thatthey will not return to haunt us; and that we will thereby contributeto the healing of the traumatized and the wounded—for all of usin South Africa are wounded people. (Meredith 1999:3)

Thus began South Africa's controversial experiment in transitional justice.^[25]

As they debated how to manage the transition from apartheid,negotiators on behalf of the African National Congress (hereafter ANC)and the outgoing National Party clashed repeatedly on the question ofhow to address human rights abuses committed during the apartheid era.In the negotiations leading up to the 1993 interim constitution, whichlaid down the terms of the transition, the most contentious issueconcerned the question of amnesty. After a great deal of wrangling,the two sides agreed to add a postamble to the constitution containingthe following language:

in order to advance… reconciliation andreconstruction, amnesty shall be granted in respect of acts,omissions, and offenses associated with political objectives andcommitted in the course of the conflicts of the past.”(Postamble to South Africa's Interim Constitution of 1993 as quoted inMeredith 1999: 20–21)

Many ANC supporters, who wanted to see apartheid officials broughtbefore Nuremberg style war crime tribunals, were understandably upsetby the arrangement. Nelson Mandela, who insisted on the importance ofsteering clear of “victors' justice”, remained adamantabout the need for some kind of accountability for apartheid'scrimes. Without such reckoning, he threatened, the unaddressedatrocities of the past would live with South Africans like a“festering sore” (Meredith 1999: 18).

The convergence between these two commitments—to amnesty onthe one hand and to accountability on the other—was to result inthe establishment of the TRC.

The process that led to the commission's creation was characterized byan unprecedented degree of transparency and public participation.During 1994, two major conferences were held to lay the groundwork forthe TRC's work. Both were organized by Alex Boraine, an Anti-Apartheidactivist who served as president of the South African MethodistChurch, MP for the progressive party, and the director of importantcivil society NGOs. The first of these conferences focused on thelessons of political transitions in Latin America and Eastern Europe(Proceedings were published in Boraine et al. 1994). The secondsolicited input from stakeholders inside South Africa (Proceedingswere published in Boraine et al. 1995). After the conferences, SouthAfrica's parliament began deliberating on the National Unity andReconciliation Act, which would set up the commission. TheParliamentary Standing Committee on Justice held extended publichearings asking individuals, political parties and NGOs for theiradvice on the design of the TRC. The law was finally passed, after agreat deal of bickering and debate, in May of 1995, a year or so afterit was first presented. The TRC thus became the first commission ofits kind to be created through a parliamentary process rather thanexecutive decree.^[26] Whether by design or inertia, this open,deliberative approach was also applied to the selection of commissionmembers. Nominees were suggested by NGOs, churches, and politicalparties, and were then interviewed in public by the selectioncommittee. Finally, the cabinet and president chose the commissionersfrom a short list.

The Promotion of National Unity and Reconciliation Act set thefollowing three goals for the commission:

to develop a complete picture of the gross violationsof human rights that took place in and came through the conflicts ofthe past; to restore to victims their human and civil dignity byletting them tell their stories and recommending how they could beassisted; and to consider granting amnesty to those perpetrators whocarried out their abuses for political reasons and who gave fullaccountings to their actions to the commission. (Graybill 2002:6).

The commission would respect the ANC's promise to offer amnesties, butthe reprieve would not be granted automatically. It would, rather, belinked to a demand for full disclosure from perpetrators. Thoseseeking amnesty would have to apply for it, provide full details aboutwhat they had done, and establish that their activities werepolitically motivated (rather than the result of greed, sadismetc.).^[27]Applicants would not, however, be required to apologize or otherwiseexpress regret. Furthermore, the arrangement would eliminate not onlycriminal responsibility but also civil liability.^[28] Successfulapplicants could be neither charged nor sued for their conduct duringthe apartheid years. The commission would be charged withinvestigating abuses that took place between March 1, 1960 and May 10,1994.

The commission was divided into three committees in order to realizethe aims set out by the law: the committee on human rights violations,the committee on amnesty, and the committee on reparation andrehabilitation. The first would collect testimony and conduct publichearings regarding the abuses. The second would consider applicationsfor amnesty from members of the security forces and ANC, and determinewhether the acts in question were committed in a political context andwhether applicants had provided full disclosure about them. The thirdwould come up with recommendations and criteria for whom to compensateand how.

The TRC's authority and resources were unprecedented in the history oftruth commissions. It had the power to subpoena witnesses and theauthority to order searches and seizures. It had a witness protectionprogram, 300 staff members, and an annual budget of 18 milliondollars. Its proceedings were broadcast on a daily basis on bothradio and television, and were widely covered by the printedpress. During the course of its tenure, the commission took testimonyfrom more than 22,000 victims and witnesses, hearing upwards of 2,000of them in public.

Unsurprisingly, the main controversy surrounding the commission's workconcerned its amnesty-granting powers. The opportunity afforded toperpetrators of egregious human rights abuses to walk away fromprosecution enraged many black South Africans who wanted to see thosewho had tormented them and their families put behind bars. As far asmany blacks were concerned, the TRC allowed some of apartheid's worstoffenders to “get away with murder.”^[29] As Martin Meredith(1999: 315) puts it in his superb survey of the commission'stenure:

…the work of the TRC provoked…anger inparts of the black community…particularly over the way securityforce operatives responsible for heinous crimes were given freedom inexchange for a bit of truth telling, while victims and their familieswere denied access to the courts. What many wanted more than truth wasjustice—prosecution in the courts and prisonsentences.

Many academic observers of South Africa's transition were dismayed as well, remarking that neither political necessity nor the attempt to create social solidarity can justify the kind of sacrifices of retributive justice the TRC's work entailed.

The outrage is more than understandable, when one considers cases likethat of Vlakplass commander Dirk Coetzee who testified to killing ANCactivist Sizwe Kondile and burning his body on an open bonfire.Coetzee and his men stood by, drinking beers and smoking for more thanseven hours, until nothing remained of Kondile. The sight of such aman walking away from his testimony cannot but turn one's stomach.

The international community has continued to experiment with truthcommissions as a means to achieve transitional justice. On July 13,2001, the United Nations Transitional Administration in East Timor(UNTAET) established the Commission for Reception, Truth, andReconciliation (CRTR). The purpose of this commission is to promote“national reconciliation and healing” after decades ofpolitical conflict following the 1975 invasion and subsequentoccupation of East Timor by Indonesia.

Following a failed attempt to annex East Timor in 1999,Indonesia-supported militants are suspected of killing over 1,000supporters of an independent East Timor and caused hundreds ofthousands of civilians to flee their homes (Stahn 2001).

In 2011, Brazil also created a truth commission to investigate andpublicize human rights abuses that occurred during the rule ofBrazil's military dictatorship from 1964–1985. The seven-personcommission was provided with a two-year mandate to investigate humanrights abuses and to compile a file report to be released publicly.However, doubts regarding the truth commission remain as a result of a1979 law that provided amnesty to many of those responsible for crimescommitted during the military regime's rule.^[30]

Much of the scholarly literature on the TRC in South Africacenters on the question of justification, on the attempt to locate arationale which might make sense of an arrangement that goes against agreat deal of our untrained intuitions about justice. “Ifjustice requires the prosecution and punishment of those who commitgross human rights violations”, writes Elizabeth Kiss (2000:68), “then the amnesty offered by the TRC violates justice. Canthe TRC be defended against, or in spite of, this criticism?”Similarly, Amy Gutmann and Dennis Thompson (2000: 22) point outthat:

In a democratic society, and especially in a societythat is trying to overcome injustices of the past, trading criminaljustice for a general social benefit such as social reconciliationrequires a moral defense if it is to be defensible.

Kent Greenwalt (2000: 191) echoes the same concern when he reminds usthat,

those who decide whether to include amnesty as anadjunct to a truth commission must face two basic issues. Doesgranting amnesty to murderers and torturers involve doing injustice?What might justify the state's doing such aninjustice?

In what follows, we offer a critical survey of some of the mostimportant philosophical justifications of the TRC. The discussionapplies to any truth commission with comparable powers (thisdiscussion is based on Eisikovits 2004, 2006).

3.2 Justifying Truth Commissions

3.2.1 Deliberative democracy

Gutmann and Thompson (2000) argue that a justification of a truthcommission needs to meet three criteria relevant for the justificationof all democratic institutions: it must be moral in principle,inclusive, and moral in practice. The first condition rules out whatthe authors call therealist justification—the claimthat the compromise embodied in the TRC was necessary in order toavoid a civil war. The second demands that the justification employreasons that are “broadly accessible and therefore inclusive ofas many people as possible” (2000: 23). The last requires thatthe justification be based on reasons that “are to the extentpossible embodied or exemplified by the commission's ownproceedings” (2000: 23). The justification that most fully meetsthese three requirements, argue the authors, is one rooted in theconcepts of deliberative democracy and reciprocity. Central todeliberative democracy is

the idea that citizens and officials must justify anydemands for collective action by giving reasons that can be acceptedby those who are bound by the action…. (2000:35–36)

This, in turn, presupposes the notion of reciprocity

which asks citizens to try to justify their politicalviews to one another, and to treat with respect those whomake…efforts to engage in this mutual enterprise even when theycannot resolve their disagreements” (2000: 36).

To the extent that a truth commission promotes such reciprocalexchanges it is morally justifiable, because such an exchange is, initself, a moral good. The first condition is thus met. A commissionbased in a conception of deliberative democracy is also inclusivesince the principle of reciprocity involves appeals to reasons thatmake sense to a large number of participants in the politicalprocess:

the standard of reciprocity also satisfies the secondrequirement of justification by providing an inclusive perspective. Areciprocal perspective is one that cannot be reasonably rejected byany citizen committed to democracy because it requires only that eachperson seek terms of cooperation that respect all as free and equalcitizens. (2000: 37)

Finally, a commission committed to the principle of reciprocity is likely to function in a way that embodies that principle.

Such a commission practices what it preaches about thedemocratic society that it is trying to help create. Reciprocityserves as a guide… for the commission itself, calling on thecommissioners and the testifiers to practice some of the skills andthe virtues of the democratic society they are striving tocreate… the openly participatory process by which members andstaff of the TRC were appointed, and the generally public process inwhich its proceedings were conducted, demonstrated its own commitmentto democratic practices. (2000: 37)

Reciprocity, argue the authors, implies anothercommitment—to “the economy of moral disagreement.”Citizens must justify their positions by using the least controversialrationale available. The principle of economy encourages thoseengaged in deliberation to look for justifying reasons that overlapwith rather than contradict beliefs held by others. To be morallyjustifiable under a conception of deliberative democracy, a truthcommission needs to economize on disagreement. An example ofeconomizing in the work of South Africa's TRC is the decision not togrant blanket amnesties and to insist on the indictment of some of theworst perpetrators.

The proposed justification presents several difficulties. First, itassumes that a justification of truth commissions must meet the samedemands that justifications of existing democratic institutions needto satisfy. But a truth commission is not a democratic institution.Rather, it is an institution that is meant to facilitate thetransition of a society to democracy. More often than not, countriesundergoing such transitions lack a democratic tradition, have nohistory of significant public dialogue, and have not secured theminimal economic conditions required for meaningful politicalparticipation. Under these circumstances, expecting truth commissionsto reflect and promote the ideals of deliberative democracy might betoo ambitious.

Second, the justification is not specific enough. It is not clear whydeliberative democracy, and its accompanying attributes of reciprocityand minimizing disagreement, justify truth commissions any more thanother transitional instruments. Thus, for example, a war crimestribunal may generate as much public discussion as a truth commission,it may be based on reasons or principles as widely accessible as thoseunderlying a truth commission, and it may insist on trying only theworst offenders, thus economizing on moral disagreements. It seems, inother words, that the deliberative democracy-based argument justifiesmore than one transitional policy.

Finally, it is questionable whether the TRC can be justified through adeliberative democracy rationale at all. The commission did not embodya particularly open, deliberative stance in its operation. Thoughmany of its hearings were public, some of the important proceduresassociated with them were confidential by default. Thus, for example,the proceedings of the amnesty commission were public, but the amnestyapplications themselves, as well as the supporting documentation,remained confidential until declassified by thecommission. Furthermore, the commission was exempt from standard rulesof legal procedure and evidence. Perpetrators named in the testimonyof victims, or in the testimony of other perpetrators, were not givenan opportunity to defend themselves; second-hand information, which atraditional court would have disqualified as hearsay, was admitted,etc. Now a commission making these sorts of exceptions to the preceptsof procedural justice can still be justified (for example by showingthat these exceptions were necessary for establishing the chain ofresponsibility leading to the higher ranks of government). But it isdoubtful whether the best way to justify it is by invoking aconception of deliberative democracy. For public deliberation to bemeaningful and substantial, strong protections of procedural justicemust be in place. As mentioned previously, these were lacking in thecase of the TRC.

3.2.2 Justice as Recognition

A second justification holds that truth commissions, by focusing onvictims and providing them with the opportunity to tell their storiesto a sympathetic forum, recognize victims as moral agents with storiesworth telling. As Kiss (2000: 73) puts it,

providing a platform for victims is one of the coretasks of truth commissions, not merely as a way of obtaininginformation but also from the standpoint of justice…Those whoselives were shattered are entitled to have their suffering acknowledgedand their dignity affirmed, to know that their “pain is real andworthy of attention”… We affirm the dignity and agency ofthose who have been brutalized by attending to their voices and makingtheir stories a part of the historical record.

The TRC did not adhere to the strict, skeptical approach to witnessesprevalent in law courts. Standard laws of evidence wererelaxed. Commissioners offered unusual gestures of acknowledgementsuch as rising when the witnesses entered the courtroom, visiting thesites of atrocities, and participating in public reburials (for moredetail see Kiss 2000: 73). These practices were aimed at making theprocessabout the victims of apartheid; witnesses wereassumed to be speaking the truth, and were treated as people withvaluable tales to tell and lessons to teach.

The justification of the TRC sketched above is a powerful one. Atransition from mass atrocity into civil society, if it is to bestable and lasting, requires that the value of the individual lives ofan entire class—the class of victims—be affirmed. Byallowing victims to testify in an uninterrupted manner, and bycreating a setting in which their testimonies were presumed to betrue, the hearings of the TRC in South Africa went beyond establishingthe crimes of the security forces, or presenting the hardships ofeveryday life under apartheid. They also posited blacks, for the firsttime, as persons whose stories ought to be heard with care andrespect. In other words, not only the content of the testimoniesbefore the TRC was of significance; the mere act of blacks testifyingwas transformative as well. The class of whites, the majority of whomhad supposed that a black man or woman cannot be the bearer oflegitimate, significant information, was made to think again.

However, the argument from recognition raises a serious difficulty.Some victims argued that the restoration of their dignity requiresthat those who hurt them be punished; that in order to feel worthy ofrespect, they must know their injuries merit the criminal law'sprotection. For such victims, dignity is manifested not by thecapacity to testify, but primarily by the commitment of the state toapply its coercive power on their behalf. For some of us, in otherwords, the currency of recognition is punishment rather thanstorytelling; being recognized as a human being again can consist,first and foremost, in knowing that one is part of a civic zoneprotected by law, where the use of violence against her is met withstrict sanctions. Under this understanding, the newfound capacity totestify, even if combined with promises of future protection by thelaw, simply does not cut it.

3.2.3 More truth

Some defenders of truth commissions claim that these bodies arebetter than trials at producing comprehensive accounts of past abuses.This superiority, they say, justifies compromises in retributivejustice. In the case of the TRC, it was not only the dismissal ofregular rules of evidence that allowed commissioners to unearth moreinformation. The commission's amnesty-for-truth mechanism created anincentive for perpetrators to come forward. Once they started to doso, a domino effect resulted: offenders who were exposed in thetestimony of their colleagues rushed to testify lest they be indicted.Furthermore, since the commission was authorized to deny amnesty toanyone who had not provided “full disclosure”, those whocame before it tried to give as much detail as they could.

The “more truth” justification is a strong one. Twoobservations are, however, in order. First, as some critics of the TRChave noted, its choice to focus on gross human rightsviolations—on dramatic stories of suffering, has obscured someof the institutional aspects of apartheid. Thus, the interconnectionsbetween business and the security forces, the wildly discriminatorypractices of many work places and the support that many white mediaoutlets lent authorities in masking the practices of apartheid werelargely overlooked by the commission's work. Insofar as these, too,are aspects of the truth, they were not revealed by the TRC.

Second, the fact that the TRC was the result of a political compromisemeant that there were some areas in which it treaded carefully. Someworm cans remained closed. In a recent book on the history ofapartheid, Terry Bell (2003: 4) mentions one remarkable example: asFredrick de Klerk, South Africa's last white leader, was heading forOslo to receive the Nobel peace prize in 1993, he ordered a strike ona house allegedly housing militants from the Pan African Congressliberation group. A police death squad ended up killing five teenagerssleeping in a private home in the town of Umtata. The incident wasnever investigated by the TRC.

3.2.4 Forgiveness

It has become fashionable of late to speak about the importance offorgiveness in politics. Forgiveness is said to be the onlydisposition that allows us to break free of the endless cycle of blowand counter blow characteristic of ethnic conflict. We are told thatforgiving is our only chance to put to rest a tortured, complicatedhistory of assaults and recriminations. One celebrated practitioner ofpolitical forgiveness, the Archbishop Desmond Tutu, called his book onSouth Africa's Truth and Reconciliation CommissionNo Futurewithout Forgiveness. As the title suggests, Tutu argues that itis only by forgoing resentment and learning to forgive each other thatSouth Africans could ever create a viable democracy. Can the prospectsand benefits of forgiveness justify the tradeoff between truth and(retributive) justice involved in the TRC's work?^[31]

The most prevalent argument in favor of political forgivenessconcerns its potential to release victims and wrongdoers from theeffects of vindictiveness. A desire for revenge can generate anever-ending violent cycle, trapping both sides in a dynamic of blowand response, eventually destroying all those involved. As Gandhifamously put it, “an eye for an eye can make the whole worldblind.”

But forgiveness is not the only way to quell the desire forrevenge. We can steer clear of revenge without forgiving. Victimsmight seek legal rather than private justice. They might agree toinstitutionalize their vindictive passions through the use of thecourts. As Martha Minow (1998: 11) puts it, it is possible “totransfer the responsibilities for apportioning blame and punishmentfrom victims to public bodies acting according to the rule oflaw.” This is, in essence, the rationale behind the attempts toexpand the authority and centrality of the international criminalcourts in recent decades.

Victims can (and very often do) simply move away from the scene of thetrauma rather than seek revenge or engage in forgiveness. In recentyears there has been a quiet exodus of approximately 100,000Palestinians from the West Bank and Gaza, to Europe and NorthAmerica. Most Holocaust survivors, uninterested in revenge orforgiveness, simply moved thousands of miles away from the sites oftheir horrific memories and swore never to set foot in the countriesthat had persecuted them. Others replace revenge with commemoration,dedicating themselves to the creation and maintenance of monuments andmuseums. Thus, for example, many of those handing out the ID cards atthe Holocaust Museum in Washington D.C. are holocaust survivors, asare many of the guides in Jerusalem's Yad Vashem memorial.

The basic point, to reiterate, is this: vengeance can, indeed, be avery dangerous thing. But one does not have to advocate forgiveness inorder to avoid it. There are other ways to combat it, ways that mightbe free of some of the complications (more on this below) associatedwith forgiveness.

Many commentators assume that forgiving is the exclusive prerogativeof victims. On this view, it is problematic to define a process ofpolitical reconciliation in terms of forgiveness, because forgiving isa very private business that cannot be promoted as a policy. Whilethis position is intuitively powerful, we will take a somewhat morenuanced stance. Let us call it the “fading prerogative”view: While forgiving is not exclusively up to victims, it certainlymakes less sense to talk about forgiveness the further away we movefrom the partly directly injured. IfX gets hurt in a busbombing, she might forgive the person who planned the attack. It canmake sense for her parents to forgive him too, though it is notobvious that they would be forgiving the same thing (the nature of theparents' injury is different fromX's: the extent of herphysical pain was greater than theirs; the degree of their emotionalanguish might have well been higher than hers). It would be moreproblematic to speak ofX's neighbors forgiving the bus bomberforX's injuries, and even more problematic to speak of peoplewhomX has never met forgiving the bomber. Forgiveness, then,might not be the exclusive prerogative of victims, but the entitlementto grant it certainly seems to fade as we move away from them. Thereis, in other words, a limited radius in which it makes sense to speakof forgiveness. This does not, of course, mean that we cannot think ofpolitical reconciliation in terms of forgiveness. It only means thatsuch an approach would exclude a (potentially) significant part of thecommunity from the process.

There are other difficulties with making forgiveness into a politicalgoal. A policy encouraging victims to forgive those who have harmedthem risks adding insult to their injuries; it can induce a sense ofmoral inadequacy on top of the devastation already suffered. Avictim's reaction to such a policy might run something like this:

isn't it enough that I had to go through all this? Nowyou are expecting me to forgive the person who did it? Now you areplacing the moral burden on me?

Such a reaction suggests that demands for forgiveness mightexacerbate rather than quell resentment—both towards theoffender, to whom the victim does not want to owe a moral debt, andtowards the state that makes such demands. Ironically, then, a policyadvocating forgiveness might undermine one of its own aims—thereduction of vindictive and resentful passions after conflict.

Finally, it is worth remembering that forgiveness is a deeplyChristian notion. As J.G. Williams puts it: “forgiveness is atthe religious, theological and ethical core of the Christiantradition” (Rye et al. 2000: 31). The term does have animportant role in both Judaism and Islam, but its status in thesefaiths is more ambivalent. Thus, for example, while Judaism does,under some conditions, impose a duty to forgive, it is not clearwhether this duty must be exercised towards non-Jews. Furthermore,Judaism, unlike Christianity, discourages unconditionalforgiveness. Islamic doctrine does state that forgiveness is superiorto revenge, but permits retributive practices, and even feuding undersome circumstances. Unlike the famous Christian teaching encouragingthe turning of the other cheek, the Koran recommends a middle waybetween absolute vindictiveness and absolute forgiving. It reads:

let harm be requited by an equal harm, though anyonewho forgives and puts things right will have his reward from GodHimself--He does not like those who do wrong. (al-Shura 42:40)(Haleem, M., 2004))

The Koran also makes a division between forgivable and unforgivable sins, mentioning the trespass ofshirk—the recognition of divinities other than Allah—as a prime example of the latter category. Finally, both Judaism and Islam allow for forgiveness without the resumption of relations between victim and offender, while Christianity insists that the possibility of full restoration of previous relations be left open.

Since the demands and centrality of forgiveness vary between thedifferent faiths, it might be problematic to include the term as partof our notion of political reconciliation, especially in cases ofinter-religious conflict. Even if the employment of the term were notoffensive to anyone, it is likely that different religious partieswould be speaking of different things when they refer to forgiveness.This, it strikes me, can create more confusion than benefit.

4. Lustration

4.1 Historical Background

Lustration is the process of regulating how former governmentofficials can participate in post-conflict government and socialstructures. In particular, lustration involves the screening, barring,and removal of public officials from public positions in the newdemocratic system as a form of administrative justice.

The concept is based on the ancient Roman lustrum rituals, acleansing or purification of an individual or community through theremoval of pollution. Lustration is often associated with thetransition from an authoritarian regime to democratic governance, andin particular with both the denazification of post-WWII Germany andthe post-communist transition to democracy in Eastern Europe followingthe collapse of the Soviet Union. Lustration was originallyimplemented as a part of the administrative reforms imposed by theAllies in post-WWII Germany and Japan, and by states in Western Europethat were formerly occupied by the Nazi regime.

Following the end of WWII, the Allies assigned themselves the taskof purging all traces of Nazism from both German government andsociety, the first large-scale attempt at lustration in the modernera. The Big Three Allies (the Soviet Union, United Kingdom, andUnited States) agreed on a plan of action to denazify Germany at theTripartite Conference in Potsdam. The Potsdam Agreement, released onAugust 2, 1945, set the groundwork for Allied efforts at purgingNazism and its adherents from Germany. The Potsdam Agreement requiredthe Control Council (comprised of the four Allied Military Governorsin occupied Germany) to

destroy the National Socialist Party and itsaffiliated and supervised organizations, to dissolve all Naziinstitutions, to ensure that they are not revived in any form, and toprevent all Nazi and military activity orpropaganda. (II.A.3.iii)

Furthermore, the subsequent Control Council Law No. 2 declared that the Nazi Party and all affiliates, totaling more than 60 specific organizations, were to be dismantled and outlawed.

The process of denazification, however, was not limited to thedestruction of Nazi organizations. The Potsdam Agreement alsoabolished all police organizations that monitored and controlledpolitical activity for the Nazi Party and revoked all Nazi-eralegislation that established legally sanctioned “discriminationon the grounds of race, creed, or political opinion”(II.A.4).

One of the most ambitious and wide-scale activities of the ControlCouncil was the arrest of those involved with the National SocialistParty and its affiliates, and those who actively supported Nazismduring the war. The Allied arrest programs called for the automaticdetention of anyone associated with the Nazi police and securityservices, officers holding the rank of major or higher in selectbranches of the armed forces, high-ranking members of the Nazi Party,and high ranking members of the German government.^[32]

Controversially, the Potsdam Agreement also called for the removalof Nazis from both “public and semi-public office, and frompositions of responsibility in important private undertakings”(II.A.6). Although this policy was both harsh and ambitious, it meshedwith the Allied goal of both destroying the National Socialist Partyand ensuring that it is “not revived in any form”(II.A.3.iii). The process of denazification also included theconfiscation of all wealth and property associated with Naziorganizations and high-ranking Nazi officials, and a complete purgingof the educational system of all Nazis, Nazi materials, andobjectionable courses. The Allied military government also prohibitedthe display of Nazi “uniforms and insignia, salutes, medals,anthems, and music” (Plischke 1947), a policy that remained inforce even after political control was returned to the Germans.

Despite the enormous amount of resources and energy devoted to thedenazification of Germany, there were several problems associated withthe process. One of the biggest impediments to the completedenazification of post-WWII Germany was the lack of qualifiedanti-Nazis to staff the government, and in particular the court systemresponsible for trying ex-Nazis. The shortage of qualifiedprofessionals with “clean records”, combined withinterference from German officials and indifference from Americanofficers, led to disappointment among many of those tasked withensuring the complete removal of Nazism and its adherents from Germangovernment.^[33]

Following the collapse of the Soviet Union and their emergence asindependent nation-states, the states that made up the formerCzechoslovakia practiced lustration as a method of transitionaljustice. In 1991, the Czech and Slovak National Assembly passed a lawprohibiting former Communist Party officials, members of the People'sMilitia, and members of the National Security Corps from holding awide range of elected and civil service positions in the newgovernment for five years (until January 30, 1996);^[34] the ban was laterextended an additional five years.

In Hungary, a 1991 law attempted to reset the stature oflimitations on crimes committed during the period of Communist rule(1944–1990). Hungary's Constitutional Court overturned thislaw. The Court later approved an amended bill, which labeled therepression of 1956 as “war crimes” and “crimesagainst humanity”, both of which carry no finite statute oflimitations. On 9 March 1994, during the immediate run-up to nationalelections, the Hungarian Parliament passed a lustration ordinance thatplaced roughly 12,000 “officials” under review in anattempt to discover who among them had collaborated with the secretpolice during the Communist period. This list containedParliamentarians, high-ranking government officials, top officials atthe Hungarian National bank, ambassadors, generals, top mediaoperatives, police, university officials and professors, judges, stateattorneys, editors, directors of state agencies and banks, andadministrators of other sundry financial and governmental institutions(Ellis 1996).

Two panels were charged with screening suspects by investigating theirsecret files. The investigative period was to last six years andresults will remain secret for thirty years. Several elements of thislaw were found unconstitutional in March 1994, and the Parliamentpassed a new law on July 3, 1996, which provides for the screening ofall individuals born prior to 14 February 1972 before the assumptionof higher office. Former agents and officials of the internal securityservices were the target. If the lustrated official did not resignwithin thirty days, the results of the investigation would be releasedpublicly, bringing public humiliation into play as a tool oflustration.

The demise of the former German Democratic Republic (GDR) in 1990, andits annexation by West Germany, resulted in its“colonization” by administrators, bureaucrats, and juristsfrom West Germany. This was partly due to the manner in whichre-unification took place (de facto annexation), but was alsothe result of the complete inadequacy of the existing East Germancivil service in the face of the new demands of a capitalistsociety. This “colonization” and the imposition of thepolitical and legal judgment of another country, a former foe, setsthe East German lustration apart from other such processes inpost-Socialist Europe.

It was necessary to supply the new West German government withmoral and political legitimacy in the former states of EastGermany. This demanded the prosecution of past crimes under the priorregime, but also a purge of Communists and Stasi collaborators fromthe civil service. No post-Communist country has yet devised alustration scheme with the golden balance addressing these twocompeting needs. East Germany was no exception, despite—orperhaps because of—the rigor with which lustration waspursued.

The ambiguities in the definition of collaboration (in cases ofcollaboration, forced collaboration, pseudo-compliance, clandestineresistance, etc.) resulted in similar difficulties in the lustrationpurge, whose terms were defined in the EinigVrt (the Treaty ofUnification) (Blankenburg 1995). West German civil servants andlawyers largely conducted the purge and the construction of newinstitutions in East Germany. East German lawyers were both unfamiliarwith the new legal system and suspect in the eyes of the newauthorities. The non-indigenous nature of the process was a majorproblem both in fact and public perception. The scope of thelustration and the system's ability to delineate individualresponsibility for the Communist regime's repression were bothcriticized (Blankenburg 1995).

The Treaty of Unification dealt with the union of both legal andpolitical systems. Public employees would be scrutinized to determineif they were politically and ideologically fit forreemployment. Forced to reapply for their positions, public employeesfaced rejection if Stasi or other untoward associations werediscovered. They also faced criminal trial if their offenses weredeemed prosecutable by the reconstituted court system. Most trialswere therefore conducted by new West German—or more rarely,pre-screened East German—judges under East German criminallaw. These trials were meant to bring public humiliation to theconvicted.

The former leadership of the DDR was tried in courts in West Berlin.Areas of investigation by the new authorities included: commandersresponsible for the DDR's border policy (“shoot to kill”),election fraud at various levels of governance, and charges ofcorruption, embezzlement, and “misuse of public funds”(Blankenburg 1995). The prosecution took on a hybrid form: thesuspects had to be tried according to the criminal law of East Germany(which West German jurists considered anUnrechtsstaat) butwith the procedures of West German courts. The intent was tocriminalize the Communist regime by treating and prosecuting itsleadership according to the rules of an ordinary West German criminaltrial.

In the aftermath of the Iraq War of 2003, the Bush administrationpursued a policy of “de-Baathification” as a means ofpurging the government of Saddam supporters and collaborators. Incontrast to previous lustration efforts following WWII and thecollapse of the Soviet Union, the U.S. government initially indicatedthat a large number of bureaucrats and officials would be retained inthe post-Saddam government (de Young and Slevin 2003). However, thescope of the United States' de-Baathification efforts would soonexpand well beyond that initially limited scope

The U.S.-led Coalition Provisional Authority (CPA) ultimately requireda governmental purge of all Baath party members, although there wereexemptions provided to certain local coalitions. Senior Baath partyofficials were forbidden from entering the entire post-Saddamadministration, while ordinary members were prevented from enteringthe top levels of government, thereby ensuring that the top levels ofgovernment remained completely Baath-free (David 2006: 366). Inaddition, Iraq's military and police services were completelydisbanded (see Yaphe 2004), leaving large numbers of trained militarypersonnel without work or purpose.

Several problems emerged from the U.S. policy of totalde-Baathification. By excluding so many citizens who had formerly heldpower from government, the CPA ultimately excluded and marginalized alarge swath of the Iraqi population from both governance and theeconomy; an estimated 60–75 percent of those purged wereunemployed by late 2003 (seeThe Economist 2003 and David2006). To make matters worse, many of those excluded were formermilitary and police personnel who were seasoned combat veterans thatnow sought to turn their military training against the U.S.-led forcesoverseeing the reconstruction and democratization of Iraq.

As a result of the purge of Baath part members throughout the entireIraqi government, the CPA was faced with a shortage of qualifiedpersonnel to staff the new administration, military, and police forces(David 2006: 367). This lack of qualified personnel, combined withintensifying attacks against both coalition and administration targetsand the subsequent difficulty recruiting workers, deeply impacted theability of the still-forming government to function. These flaws,which ultimately obstructed efforts to stabilize Iraq and contributedto the large number of causalities caused by insurgents, will bediscussed in greater detail below.

4.2 Criticisms of Lustration

Lustration policies are often bogged down by the paradoxical natureof public trust during a political transition. A strong rationale forengaging in administrative purges is to signal that a politicaltransition is real and that the authoritarian past is being put torest. Officials responsible for a transition want to signal that theemerging democratic polity will operate differently from its corruptand dangerous predecessor. Such signaling is achieved,interalia, by displacing those who were responsible for administeringthe corrupt and vicious policies of the past. And surely, public trustdoes depend on communicating to ordinary citizens that a freshpolitical start has been made—that a new and lawful polity hasbeen launched. On the other hand, public trust also depends on thefunctionality and competence of government. The trains need to run,licenses need to be issued or renewed, roads need to be maintained,and public order has to be kept. And if the bureaucratic class thatknows how to do these things is subtracted from post war politicsbecause of how it behaved under the previous regime, the dailyoperation of government is likely to suffer. And public trust islikely to tumble accordingly (this is when we begin to hear that“at least under Saddam the trains ran on time”, etc.) Thefirst dilemma of lustration,then, concerns its scope: how does onelustrate enough so that public trust (and retributive justice) areserved, without lustrating so much that the organs of government areundone and public trust is lost as a result?^[35]

It goes without saying that different countries face differentpolitical circumstances when it comes to how much lustration they cancarry out: East Germany could afford to purge its civil service ratherseverely, due to the availability of replacements from the West. Othernations, such as Poland and Czechoslovakia, did not have this luxuryand had often to prioritize stability due to the exigencies andinherent dangers of the initial transition period.

Another complication impacting the scope of lustration arises fromthe difficulty in fixing degrees of guilt under totalitarian regimes.Here the problem is not so much lustrating in a way that maintainspublic trust but, rather, figuring out what counts, philosophically,as the appropriate degree of guilt to justify lustration in the firstplace. Mid-level officials in a ruling party mechanism cannot beautomatically labeled as enthusiastic or even willing supporters ofthe machinery of oppression. Some were, some passively found their wayinto their roles and still others were coerced into them. A morallylegitimate policy of lustration must take into account such gradationsof guilt.^[36]But the ability to determine degrees of culpability requiresexpensive, lengthy investigations which are often beyond the means ofthose orchestrating a transition.

Beyond these problems of scope lies an epistemological difficulty:Lustration purges and exclusions frequently, though not always, relyon testimonials and security service files which are often of dubiousaccuracy. The files are often rife with human error, exaggerations,and omissions. The most valuable Communist informants andcollaborators were often missing from surviving secret police files(many were destroyed or “disappeared”, probably into KGBpossession) or were shielded during the process (Minow 2000).^[37] On the other hand,employees of the security services often embellished their accountsand added false informants in the period before an audit so that theycould meet or exceed their prescribed quota.^[38]

5. Forgetting

Having examined, in some detail, three of the most important ways inwhich nations can come to terms with their past, it is perhaps fittingto conclude this entry by considering the possibility that nations donot attempt such a reckoning. Is there anything to be said forforgetting in the aftermath of war? Is there an argument to recommendamnesia as the basis of a political transition? (for a detailedtreatment see Rotondi and Eisikovits, forthcoming).

Most often, forgetting cannot serve as the basis for peacemaking. Itis destructive on both the individual and collective levels. Itcompounds the suffering of individuals by forcing them to watch theirtormentors walk around freely, reenter politics, or maintain theirposts in public service and the military. All of this takes placewhile their own painful memories and traumas remain unacknowledged.Furthermore, policies advocating forgetfulness decrease the chancesthat victims will be compensated for their suffering. The most commoninstitutional products of such policies are laws granting amnesty.Typically, under such amnesties, perpetrators are protected from bothcriminal charges and civil liability. Amanda Pike, a reporter for PBS'Frontline, tells a story which starkly demonstrates the cost offorgetfulness for individual victims. During a trip through theCambodian province of Pailin, Pike came across Samrith Phum, whosehusband was executed by the Khmer Rouge. Phum knows the murderer well.He is her neighbor and he operates a noodle shop across the streetfrom her house. He was never arrested and never charged with herhusband's murder. There is no procedure through which he can be suedfor damages. Phum must simply get used to the idea that her husband'skiller quietly manages his store next door (Pike 2002).

On the national level, a government advocating forgetfulness commitsthe political correlate of suicide: it undermines the ability of thegroup of people it governs to call itself a nation. The French thinkerErnest Renan (1882) defined a nation as consisting of

two things, which, in truth, are really justone…One is in the past, the other in the present. One is thepossession in common of a rich legacy of memories; the other iscurrent consent, the desire to live together, the willingness tocontinue to maintain the value of the heritage that one has receivedas a common possession.

Forgetting destroys both elements. It undermines the possibility of acommon history by excluding an entire class of memories. At the sametime, it obliterates the desire of formerly hostile parties to livetogether, or the possibility of social solidarity, by creating abubbling, poisonous, pool of resentment among an entire group of people.^[39]

Now Renan was far from naïve. He admits that“forgetting” and perhaps even “historicalerror” are essential in the creation of national identity. Laterhe adds that “the essence of a nation is that all individualshave many things in common and also that they have forgotten manythings.” Descriptively, he is surely right. Heroichistoriography and intentional forgetting was instrumental in creatingAmerican, Israeli, Turkish, Spanish, and French contemporaryidentities, to mention but a few. But identities based on amnesia arerarely stable. Israel's new historians, the countless young Armenianslobbying parliaments all over the world to recognize the Armeniangenocide almost a century after it took place, and the recent Spanish“Historical Memory Law” (2007) all attest that it isdifficult to simply bury the past. If the groups that have beenforgotten are not annihilated, their painful memories continue tofester until they eventually erupt in renewed conflict.

But what if all parties involved in a conflict really want to forget?What if there is a tacit or explicit agreement not to dwell on thepast? What are we to make of Mozambique, for example, where in theaftermath of a long, bloody civil war, the combatants actively electednot to address past atrocities? In her superb book on truthcommissions, Hayner (2002) describes an election rally in post-warMozambique in which a candidate was literally chased out of a hall forbringing up the conflict. Can we really make a normative argument forremembering if both sides freely chose to forget? One possible way tomake such an argument is by analogy. It is quite clear to us that, inthe domestic context, the fact that two sides to a conflict agree tobury the hatchet does not preclude their prosecution by the criminaljustice authorities. Thus, if two neighboring families becomeentangled in a massive brawl, during which property on both sides isdestroyed, and some injuries are sustained, the District Attorney'soffice may decide to issue indictments, even if all of those who didthe fighting would like to put the whole incident behind them. Thecriminal law is not a private matter completely at the discretion ofcitizens. The public has a stake in upholding the criminal law, and isunderstood to be an interested party whenever it is broken. After all,in the example provided above, wider interests were compromised:traffic may have been disturbed by the fighting, the small children ofother neighbors may have been watching, publicly funded hospitals mayhave been called on to treat the injured, reports of the fight mayhave made their way into the news media bringing down house prices,etc. In short, the fight, almost any fight, has repercussions forthird parties. That is why, in important ways, such fights areeveryone's business. And that is why criminal cases are typicallytitled Commonwealth vs. Jones rather than Smith vs. Jones.

Is there an analogous argument to be made about the aftermath ofpolitical conflict? Are there any third party interests that mayjustify some kind of reckoning with mass atrocity, even if all ofthose involved would freely choose to put the past behind them? Fullyanswering this question is beyond the scope of this entry, so we shallsimply gesture at some of the difficulties that need to be addressedin order to do justice to it.

First, who are the third parties whose interests are implicated by adecision on the part of two warring parties to bury the past? Could weargue that, given the intense media coverage given to politicalconflicts, a failure to address massive violations of human rights inlocationX (for whatever reason) may endanger human rights inlocationY (by, say, bolstering the confidence of would beperpetrators)? If so the third party could be described, vaguely, asthe international community, a community with a serious interest increating a robust culture of human rights wherein violations aredocumented and addressed rather than simply ignored.

Second, even if we agree that there are interested third parties inthe international context, how could such parties ensure that theirinterests are protected? What sort of enforcement power do they have?Here the answers are both legal and political. The nascentInternational Criminal Court may be used in cases where its authoritycomes into play. Perhaps more significantly, the internationalcommunity (or, more specifically, the most powerful internationalplayers) may resort to political pressure. After all, countries suchas Mozambique, emerging from prolonged wars, are desperately dependenton international aid. Donor countries could, accordingly, make aidcontingent on the addressing of past atrocities.

When all is said and done, it appears that the main differencebetween the domestic and international cases has to do with theconsequences of the decision whether to use the courts. While in thedomestic arena a failure to prosecute can result in increased cynicismabout the law (and eventually in a weakening of the rule of law),imposing accountability in the aftermath of war may, under somecircumstances, reignite violence. Insisting on doing justice in suchcases recalls Lord Mansfield's famous dictum in the 1772 Somersetcase: that justice must be done “though the heavens mayfall.” The trouble, of course, with this Kantian pronouncementis that there is no one to reap the fruits of justice after theheavens have fallen.

Bibliography

• Abrahamsen, T. & H. van der Merwe, 2005, “Reconciliationthrough Amnesty? Amnesty Applicants' Views of the South African Truthand Reconciliation Commission”, Research report written for theCentre for the Study of Violence and Reconciliation. [Abrahamsen and van der Merwe 2005 available online (pdf)]
• Bass, G., 2002,Stay the Hand of Vengeance: The Politics ofWar Crimes Tribunals, Princeton: Princeton University Press.
• BBC, 2011, “Brazil creates truth commission to probe rightsabuses”,BBC, 27 October 2011. [BBC 2011 available online]
• Bell, T. with D.B. Ntsebeza, 2003,Unfinished Business: SouthAfrica, Apartheid, and Truth, New York: Verso.
• Ben-Josef Hirsch, M., 2007, “Agents of Truth and Justice:Truth Commissions and the Transitional Justice EpistemicCommunity”, in V. Heins and D. Chandler (eds.),RethinkingEthical Foreign Policy: Pitfalls, Possibilities and Paradoxes,London: Routledge, pp. 184–205.
• Blankenburg, E., 1995, “The Purge of Lawyers after theBreakdown of the East German Communist Regime”,Law andSocial Inquiry, 20(1): 225.
• Boraine, A., 2001,A Country Unmasked: Inside South Africa'sTruth and Reconciliation Commission, New York: Oxford UniversityPress.
• Boraine, A., J. Levy, and R. Scheffer, (eds.), 1994,Dealingwith the Past: Truth and Reconciliation in South Africa, CapeTown: IDASA.
• Boraine, A. and J. Levy (eds.), 1995,The Healing of aNation? Cape Town: Justice in Transition.
• Beck, T.K., C. Braun, S. Buckley-Zistel, and F. Mieth, 2013,Transitional Justice Theories, London: Routledge.
• Chang, M.H. and R.P. Barker, 2001, “Victor's Justice andJapan's Amnesia: The Tokyo War Crimes Trial Reconsidered”,East Asia: An International Quarterly, 19(4):55–86.
• Childs, N., 2001, “South Africa concludes healingprocess”,BBC News, May 31, 2001, 21:56GMT. [Childs 2001 available online]
• Clinton, H.R., 2009, “Responses to Supplemental QuestionsSubmitted by Senator John Kerry”,Senate Hearing 111-249:Nomination of Hillary R. Clinton to be Secretary of State,Committee on Foreign Relations, January 13, 2009, question 118, pages99–146. [Clinton 2009 available online]
• Cobban, Helena, 2004, “Healing Rwanda: Can an international courtdeliver justice?”,Boston Review, December 2003/January 2004 issue.Cobban 2004 available in online publication.
• Corradetti, C., 2013, “Philosophy of Transitional Justice:Conceptual Problems and Political Perspectives”, inPolitica& Societa, 2: 185–220, Bologna:Il Mulino.
• Corradetti, C., N. Eisikovits, and J. Rotondi (eds.), forthcoming,Theorizing Transitional Justice, Aldershot: Ashgate.
• Cryer, R., 2005,Prosecuting International Crimes: Selectivityand the International Criminal Law Regime, New York: CambridgeUniversity Press.
• David, R., 2006, “From Prague to Baghdad: Lustration Systemsand their Political Effects”,Government andOpposition, 41(3): 347–341.
• De Young, K. and P. Slevin, 2003, “Full U.S. Control Plannedfor Iraq”,The Washington Post, February 21, 2003,available online.
• Digeser, P.E., 2001,Political Forgiveness, Ithaca, NY:Cornell University Press.
• Doorn, N., B. Stokkom, and P. Tongeren, 2012,PublicForgiveness in Post-Conflict Contexts, Antwerp: Intersentia.
• Drumbl, M.A., 2005, “Pluralizing International CriminalJustice”,Michigan Law Review, 13: 101–134.
• The Economist, 2003, “Rebuilding Iraq: Amid the Bombs andthe Rubble, the Country is Still Slowly on the Mend”,TheEconomist, November 1, 2003,available online.
• Eisikovits, N., 2004, “Forget Forgiveness: On the Benefitsof Sympathy for Political Reconciliation”,Theoria,52(1): 31–63.
• –––, 2006 “I am the Enemy you Killed, MyFriend: Rethinking the Legitimacy of Truth Commissions”,Metaphilosophy, 37(3–4): 489–514.
• –––, 2009,Sympathizing with the Enemy:Reconciliation, Negotiation and Transitional Justice, Leiden:Brill.
• –––, 2013, “Peace Versus Justice inTransitional Settings”, in C. Corradetti (ed.),Philosophyof Transitional Justice (Special issue ofPolitica &Societa, Volume 2), 221-236, Bologna: Il Mulino.
• Ellis, M., 1996, “Purging the Past: The Current State ofLustration Laws in the Former Communist Bloc”,Law andContemporary Problems, 59: 181–196.
• Elster, J., 2004,Closing the Books: Transitional Justice inHistorical Perspective, Cambridge: The Free Press Syndicate ofthe University of Cambridge.
• Elster, J., R. Nagy, and M.S. Williams, 2012,TransitionalJustice: Nomos, New York: New York University Press.
• Encarnación, O.G., 2008. “Reconciliation afterDemocratization: Coping with the Past in Spain”,PoliticalScience Quarterly, 123(3): 435–459.
• Freeman, M., 2010,Necessary Evils: Amnesties and the Searchfor Justice, Cambridge: Cambridge University Press.
• Futamura, M., 2008,War Crimes Tribunals and TransitionalJustice: The Tokyo Trial and the Nuremberg Legacy, New York:Routledge.
• Gourevitch, P., 2009, “The Life After”,The NewYorker Magazine, May 4, 2009: page 37.
• Govier, T., 2002,Forgiveness and Revenge, London:Routledge.
• Graybill, L.S., 2002,Truth and Reconciliation in SouthAfrica: Miracle or Model? Boulder: Lynne Rienner.
• Griswold, C.L., 2007,Forgiveness: A PhilosophicalExploration, New York: Cambridge University Press.
• Greenwalt, K., 2000, “Amnesty's Justice”, in Rotbergand Thompson 2000: 189–210.
• Gutmann, A. and D. Thompson, 2000, “The Moral Foundations ofTruth Commissions”, in Rotberg and Thompson 2000:22–44.
• Haleem, M. A. S. Abdel, 2004, “The Qur'an: EnglishTranslation and Parallel Arabic Text”, New York: OxfordUniversity Press.
• Hayner, P., 2001,Unspeakable Truths: Facing the Challenges ofTruth Commissions, London: Routledge.
• Higonnet, E., 2006, “Restructuring Hybrid Courts: LocalEmpowerment and National Criminal Justice Reform”,ArizonaJournal of International and Comparative Law, 23:347–435
• Horne, C. and M. Levi, 2004, “Does Lustration PromoteTrustworthy Government? An Exploration of the Experience of Centraland Eastern Europe”, inBuilding a Trustworthy State inPost-Socialist Transition, J. Kornai and S.R. Ackerman (eds.),London: Palgrave.
• Ignatieff, M., 1996, “Articles of Faith”,Index OnCensorship, 5: 110–122.
• –––, 1997a, “Digging Up the Dead”,New Yorker, November 10, 1997, pp. 84–92.
• –––, 1997b,The Warrior's Honor: Ethnic Warand the Modern Conscience, New York: Owl Books.
• Jackson, R.H., 1945, “Opening Statement NurembergTrials”, November 21, 1945. [Jackson 1945 available online]
• Judt, T., 2006,Postwar: A History of Europe Since 1945,New York: Penguin.
• Kiss, E., 2000, “Moral Ambition Within and Beyond PoliticalConstraints: Reflections on Restorative Justice”, in Rotberg andThompson 2000: 68–98.
• Koch, H.W., 1997,In the Name of the Volk: Political Justicein Hitler's Germany, London: I. B. Tauris & Co Ltd.
• Krog, A., 1998,Country of My Skull: Guilt, Sorrow, and theLimits of Forgiveness in the New South Africa, Johannesburg:Random House.
• Letki, N., 2002, “Lustration and Democratisation inEast-Central Europe”,Europe-Asia Studies, 54(4):542.
• Lloyd, J., 2008, “International Law on Trial: PartOne”,Financial Times, July 26, 2008,available online.
• Machiavelli, N., 1532,The Prince, Ch. 15. New York, NY:Macmillan, 1985.
• May, L., 2007,War Crimes and Just War, New York:Cambridge University Press.
• McCullough, M.E., K.I. Pargament, and C.E. Thoresen (eds.), 2000,Forgiveness: Theory, Research, and Practice, New York:Guilford Press.
• Meierhenrich, J., 2006, “The Ethics of Lustration”,Ethics and International Affairs, 20(1): 99–120.
• Meredith, M., 1999,Coming to Terms: South Africa's Search forTruth, New York: Public Affairs.
• Mihai, M., 2010. “Transitional Justice and the Quest forDemocracy: A Contribution to a Political Theory of DemocraticTransformations”,Ratio Juris, 23(2):183–204.
• Minow, M., 1998,Between Vengeance and Forgiveness,Boston: Beacon.
• –––, 2000. “The Hope for Healing: What CanTruth Commissions Do?”, in Rotberg and Thompson 2000:235–260.
• Morgan, E., 2008, “The West may come to regret theInternational Criminal Court's indictment of Sudanese President Omaral-Bashir”,National Post, July 16, 2008,available online.
• Murphy, C., 2012,A Moral Theory of PoliticalReconciliation, Cambridge: Cambridge University Press.
• Murphy, J.G., 2003,Getting Even: Forgiveness and itsLimits, Oxford: Oxford University Press.
• Mydans, S., 2010, “In Cambodia, Clinton Advocates KhmerRouge Trials”,The New York Times, November 1, 2010,page A8. [Mydans 2010 available online]
• Nagel, T., 1979, “Moral Luck”, inMortal Questions, Cambridge: Cambridge University Press,1979. pp. 24–38; reprinted in Statman 1993.
• Napoli, J.F., 1949, “Denazification from an American'sViewpoint”,Annals of the American Academy of Political andSocial Sciences, 264(Jul): 115–123.
• Nouwen, S., 2006, “Hybrid Courts: The Hybrid Category of aNew Type of International Crimes Courts”,Utrecht LawReview, 2(2): 190–214.
• Ohlin, J.D., 2007, “On the Very Idea of TransitionalJustice”,Whitehead Journal of Diplomacy and InternationalRelations, 8(1): 51–68.
• Osiel, M., 1999,Mass Atrocity, Collective Memory, and theLaw, New Brunswick: Transaction.
• Persico, J., 1994,Nuremberg: Infamy on Trial, New York:Penguin Books.
• Peskin, V., 2005, “Beyond Victor's Justice? The Challenge ofProsecuting the Winners at the International Criminal Tribunals forthe Former Yugoslavia and Rwanda”,Journal of HumanRights, 4(2): 213–231.
• Pfiffner, J.P., 2010, “US Blunders in Iraq:De-Baathification and Disbanding the Army”,Intelligence andNational Security, 25(1): 76–85.
• Philpott, D., 2006,The Politics of Past Evil The Politics ofPast Evil: Religion, Reconciliation, and the Dilemmas of TransitionalJustice, Notre Dame: University of Notre Dame Press.
• –––, 2007,Religion, Reconciliation, andTransitional Justice: The State of the Field, New York: SocialScience Research Council Working PapersPhilpott 2007 available online].
• Plischke, E., 1947, “Denazification Law andProcedure”,The American Journal of International Law,41(4): 807–827.
• Posner, E. A. and A. Vermeule, 2004. “Transitional Justiceas Ordinary Justice”,Harvard Law Review, 117(3):761–825.
• Power, S., 2002,A Problem from Hell: America and the Age ofGenocide, New York: Basic Books.
• Rauschenbach, M. and D. Scalia, 2008. “Victims andinternational criminal justice: a vexed question?”International Review of the Red Cross, 90(870):441–459. [Rauschenbach and Scalia 2008 available online]
• Renan, E., 1882, “What is a nation?”, reprintedinQu'est-ce qu'une nation? Paris: Pocket,available online.
• Robinson, D., 2008, “The Identity Crisis of InternationalCriminal Law”,Leiden Journal of International Law, 21:925–963.
• Rosenberg, T., 1996,The Haunted Land: Facing Europe's GhostsAfter Communism, New York, NY: Vintage Books.
• Rotberg, R. I. and D. Thompson (eds.), 2000,Truth v.Justice: The Morality of Truth Commissions, Princeton, NJ:Princeton University Press.
• Rotondi, J. and N. Eisikovits, forthcoming, “ForgettingAfter War: A Qualified Defense”, in C. Corradetti,N. Eisikovits, and J. Rotondi, forthcoming.
• Rye, M.S., K.I. Pargament, A. Ali, G.L. Beck, E.N. Dorff,C. Hallisey, V. Narayanan, & J.G. Williams, 2000, “Religiousperspectives on forgiveness”, in McCullough et al. 2000, pages17–40.
• Sartre, J.P., 1948, “Dirty Hands”, Lionel Abel(trans.), inNo Exit and Three Other Plays, New York, NY:Vintage Books, 1989.
• Scott, B., 2008, “International war crimes arguably mostimportant since Nuremberg”,Missourian, August 3, 2008,Columbia: MO: Missouri School of Journalism. Moderateddiscussion.
• Shattuck, J., 2006, “The Legacy of Nuremberg: ConfrontingGenocide and Terrorism Through the Rule of Law”,GonzagaJournal of International Law, 10: 6–16.
• Stahn, C., 2001, “Accommodating Individual CriminalResponsibility and National Reconciliation: The UN Truth Commissionfor East Timor”,American Journal of International Law,95: 952–966.
• Statman, D. (ed.), 1993,Moral Luck, Albany, NY: StateUniversity of New York Press.
• Strauss, S. and L. Waldorf (eds.), 2011,Remaking Rwanda:State Building and Human Rights after Mass Violence, Madison, WI:University of Wisconsin Press.
• Teitel, R., 2000,Transitional Justice, New York: OxfordUniversity Press.
• Thucydides, 1996,The Landmark Thucydides: A ComprehensiveGuide to the Peloponnesian War, R. Strassler (ed.), New York:Touchstone Press.
• Totani, Y., 2008,The Tokyo War Crimes Trial: The Pursuit ofJustice in the Wake of World War II, Cambridge, MA: HarvardUniversity Press.
• Tremlett, G., 2006.Ghosts of Spain: Travels Through Spain andits Silent Past, New York: Walker & Company.
• Tutu, Desmond, 1999,No Future without Forgiveness, NewYork: Doubleday.
• van der Merwe, H., 2003, “The Role of the Church inPromoting Reconciliation in Post-TRC South Africa”, in A.Chapman and B. Spong (eds.),Religion and Reconciliation in SouthAfrica, Philadelphia: Templeton Foundation Press, pages269–281. [van der Merwe 2003 available online]
• van der Merwe, H., 2005. “Reconciliation through Amnesty?Amnesty Applicants' Views of the South African Truth andReconciliation Commission”, Centre for the Study of Violence andReconciliation,available online.
• Waldron, J., 2001, “Superseding Historical Injustice”,Ethics, 103(1): 4–28.
• Walzer, M., 1973. “Political Action: The Problem of DirtyHands”,Philosophy and Public Affairs, 2(2):160–180.
• Williams, B., 1982, “Moral Luck.” Moral Luck, 20–39,Cambridge: Cambridge University Press.
• Yaphe, J.S., 2004, “Reclaiming Iraq from theBaathists”,Current History, 103(669): 13.

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Other Internet Resources

• Cited Web Resources:
  • Cobban, H., 2004, “Rwanda today: The International Criminal Tribunal and the Prospects of Peace and Reconciliation, an Interview with Helena Cobban”, Posted April 1, 2004, Frontline, PBS.
  • Hanson, S., 2008, “Peace, Justice, and Darfur”, Council on Foreign Relations, July 28, 2008.
  • Morris, E., 2003,The Fog of War: Eleven Lessons from the Life of Robert S. McNamara, distributed by Sony Pictures Classic.Morris 2003 transcript available online
  • Pike, A., 2002, “Prey Ta Tauch: The Killer Next Door”, inCambodia, Pol Pot's Shadow, October, 2002, Frontline/World, PBS.Pike 2002 available online.
• Trial Documents and Truth Commission Reports:
  • The International Military Tribunal for Germany:Contents of The Nuremberg Trials Collection (Yale)
  • Materials concerning the International Criminal Tribunal for Yugoslavia (ICTY)
  • Slobodan Milošević Trial Public Archive (Bard College)
• Other Web Resources:
  • Potsdam Agreement, August 1, 1945.
  • Rome Statute of the International Criminal Court. Signed July 17, 1998.
  • United Nations Security Resolution 1970. Passed February 26, 2011.
  • Human Rights Watch
  • Strategic Choices in the Design of Truth Commissions
  • International Center for Transitional Justice
  • The International Journal of Transitional Justice
  • Essex Transitional Justice Network
  • United State Institute of Peace, an “independent, federally-funded national security institution devoted to the nonviolent prevention and mitigation of deadly conflict abroad”.
  • Beyond Intractability, at the University of Colorado Conflict Information Consortium

Related Entries

cosmopolitanism |nationalism |responsibility: collective |rights: human |torture |war |world government

Acknowledgments

I am grateful to Thomas Pogge and to Greg Fried for their commentsand encouragement. Thanks are also due to my research assistants atSuffolk University, Michael McDonough, Josef Nothmann and MarcusTaylor.