As the Syrian conflict drags on, it becomes possible to speculate about how it might end. As the first major conflict to emerge in a world context of universal communication and limitless reproduction of the stories and imagery of war, it has cemented itself in the imagination like no other conflict of recent times. This wholly new way in which conflict is experienced by the spectator and by the combatants will surely become a recognisable feature of the landscape of war and peace in this century. The West too has become another spectator of this conflict, excluded from negotiations. When the conflict comes to an end, the UN, as a singularly Western creation, will surely also be excluded from the transition towards peace. As the great era of peacebuilding comes to a close, there will be no need for one of the key components of UN expertise: transitional justice, or more truthfully, the ethic of transition.
The relationship between the Senate and the Emperor in the Early Roman Imperial Age was marked by a high degree of tension, a constant negotiation of power. The substance of political life was expressed in the brutal conflict between various aristocratic client interests locked in struggle for control over the mechanisms of state power. The rule of Domitian was characterised, in elite Classical sources, by excessive brutality directed toward political dissidents and opponents. After his assassination in 96 AD, his successor, Trajan, and a variety of aristocratic writers including Tacitus and Suetonius, consistently blackened Domitian’s name, leaving us with the image of a ruthless tyrant that is preserved to this day. Pliny the Younger’s Panegyric, welcoming Rome’s new ruler to power, distinguishes Trajan from Domitian. “I pray you … that independence, truth, and sincerity mark my every word … Away, then, with expressions formerly prompted by fear: I will have none of them. The sufferings of the past are over: let us then have done with the words which belong to them … Times are different, and our speeches must show this”. Pliny’s acclamation contains within itself the source of its own completion. The opening truth claim is true because he has said it. Under Domitian, it was impossible to speak the truth, for the conditions for untruth were so favourable. Under Trajan, in more truthful times, truth becomes the spirit of the day. Light replaces darkness, and good evil.
This ethic of transformation is a reflection of the character of unstable institutions. In the absence of reactive institutions, capable of internal and organic change, and linked to a stable sense of the past and future, transition can only be envisioned as a total change from what came before. In the same way as in anarchic, slave societies, freedom can only be envisioned as the pure absence of order, and law too can only express an acceptance or rejection of control in totality. In seeing the law as an expression of universal battles, we cease to see the world in terms of tension and begin to see it as a frame of limitless potentiality, a landscape among possible landscapes, or worse in Manichean terms: as a battlefield in which light and dark, good and evil, and order and disorder are pitted against each other, spinning in the void. But real law and real legitimacy come not from this constant re-imagining, but from the layers of trust, value and reciprocation built up within real human communities over time. There are many kinds of justice, situated in all kinds of collective arrangement. Scots Law differs in fundamental respects from English Law, despite more than three hundred years of shared endeavour and history. Law, properly understood, can never gain coherence in universals, subject to invention and reinvention, or in structures that any single individual can put in place. These systems do not contain simply the various means by which we limit the world, but create the particular ends which express our own particular goals, valuable precisely because they are particular.
The United Nations model of transitional justice is a noble attempt to bring restitution to the excesses of wartime. But its frameworks are caught in this bind. How can we create a template that is both reactive enough to local circumstance yet comprehensive enough to be applied on a global level? How too can legal frameworks hope to contain the various spaces which exist with their own validity and momentum? The post-conflict space, whether in Northern Ireland or in the South American and African civil wars of the past decades, has come into focus as a moment with its own dynamism, and fluidity. The use of transitional justice mechanisms of various kinds has become a commonplace feature of this singular space between the shifting boundaries of conflict and peace. Legal frameworks have been developed to compass this space, but focused in these frameworks it is a space emptied of place, time and people. It is true that the post-conflict moment occupies a position of universal significance, but it is experienced in vastly different ways across the globe, always mediated by the more prosaic themes of identity, allegiance, community and home. The attempts of the UN to create all kinds of mechanism to mediate the transition between war and peace bypass these secondary considerations. Transitional justice mechanisms are reduced to an existence in the most instrumental sense: a mechanisms devoid of the legitimacy conferred by real people, situated in experience. They are constantly transformed into new formulations, always to be replaced by the pressure of alternative formulation, and move further and further from the sense of reality.
Madeline Albright delivered a speech in 1994, as US ambassador to the UN, which reflected the new idea that, alongside economic aid, transitional justice mechanisms were crucial in the creation of a durable peace. She said in support of the International Criminal Tribunal for Bosnia that “establishing the truth about what happened in Bosnia is essential to, not an obstacle to – national reconciliation”. The same concern for the truth is reflected in USAID’s Office of Transition Initiatives which include the statement that “national reconciliation and conflict resolution [is only made possible] by discovering the truth of what happened during the conflict and supporting public acknowledgement of crimes committed”. This was not an isolated belief. The International Criminal Court was set up in 1993, under the same kind of rubric. The two key elements of this liberal-legal framework are both that atrocities committed during time of war should be subject to prosecution from international sources, and that the non-judicial architecture of truth commissions is seen as a transformative source for building a more durable peace. The former seeks to address long-term durability and the latter seeks to rectify short-term desire for retribution against the most egregious cases of abuse. Taken together, these commitments make up the variety of the term ‘transitional justice’. It is crucial to keep in mind that transitional justice promises transformation, not continuity, and seeks to capture stability through rapid change.
The language of this set of norms which claims universal application is evidently located in Western traditions of truth-telling and ‘just war’ traditions. Truth and reconciliation commissions throughout the world have reflected Western normative concerns. In South Africa, in the TRC final report, written by Archbishop Desmond Tutu, this normative framework is laid out: “However painful the experience, the wounds of the past must not be allowed to fester. They must be opened. They must be cleansed. And balm must be poured on them so they can heal. This is not to be obsessed with the past. It is to take care that the past is properly dealt with for the sake of the future”. A wound can only ever be inflicted on, and felt by, an individual consciousness. Tutu uses the language of wounds to address the problem of national reconciliation, thus drawing a direct link between the individual and the wider collective. This can be achieved only by the verbalisation of injustice perpetrated in the past. The roots of this confessional perspective lie in the Western Christian tradition.
Judicial mechanisms to create reconciliation as well as non-judicial forms also owe their methodology to Western conflict resolution norms. Following World War II, the Nuremberg trials marked an important shift in thinking about the relationship between international and national jurisdiction. The notion that judicial sovereignty is conditional on certain commitments to universal human rights was long in the making. The tradition of just war theory and conflict resolution emphasised the responsibilities of the victors to the vanquished and, in due course, the rights of victims to restitution for abuse by their rulers. The idea of a just peace to match the conditions for just conflict had its roots even in the sixteenth century in the works of legal thinkers like Francisco de Vitoria who believed that states should always be placed under extra-territorial legal commitments. This underpinned the judicial response and punishment of those responsible for the Holocaust, who were not necessarily acting illegally under German law. But crucially, beyond the judicial techniques for dealing with atrocities, the years that followed Nuremberg were dominated by narratives of truth seeking, with the hope that peace could be gained by a relentless focus on retelling the story of the Holocaust. Holocaust denial has been vociferously exposed at its every appearance. The character of representation of the Holocaust has always been about truth rather than dramatisation. The documentary ‘Shoah’ is no more (and no less) than nine hours of footage of interviews with survivors and perpetrators, the testimonies unvarnished by authorial comment.
It is clear that the apparatus and methodology of ‘transitional justice’ never originated in some universal absolute system of values. Rather, these supposedly global norms are located in the legacy of primarily Western traditions, and their transformative ethic is inextricably a product of that legacy, and only attains its coherence and sees its legitimacy conferred by the source of its generation.
Modern warfare now operates in a unique relationship between the spheres of war, peace and post-conflict. Postmodern internal conflict functions somewhere between vertical dynamics and horizontal dynamics. Models of warfare which stress the role of professional armies, territorial expansion and external enemies cannot describe the nature of internal civil wars, particularly in the post-Cold War era. Civil war in Guatemala is a good case against which to test alternative models. The country itself is highly diverse in its local cultural units, histories and geographies, its communities divided between dozens of different languages and divided by steep valleys and mountain ranges. Vertical relationships between the central state apparatus and people at large are intensely variegated by horizontal, local loyalties between tribes or villages. The civil war was experienced in vastly different terms by different parts of the population. Some regions were decimated, while some remained completely untouched by the violence.
Transitional justice mechanisms have primarily been employed to address internal conflicts, which fall in particular into the diverse variety of local and regional units that make up any country. The transition from war to peace is similarly non-linear. And just as conflict can move up and down, the way in which it comes to a close can move backwards and forwards. The contours and divisions of the arguments that played out during the French Revolution define French politics today. The Spanish and Russian civil wars are both to this day the subject of heated debate. The relationship between conflict and peace, highly volatile, shifting, and bounded by complex local and regional processes, defies the approach implied by transitional justice. Transitions take on many forms and so too should the way in which we think about transitional justice.
Unsurprisingly, this Western emphasis on truth-telling has proved unproductive. In Sierra Leone, the UN backed Truth and Reconciliation Commission placed an explicit emphasis on verbal confessions in a bid to come to terms with the past. The message of the TRC was neatly encompassed in a series of posters which encouraged people to speak and heal: “It’s hard to speak the truth, but only this will give you peace”. The sessions were poorly attended and the conversations were conducted in an odd atmosphere. Lansana Gberie, who observed the trials, wrote that “onlookers, including some Commissioners, would giggle when victims narrated unusual forms of atrocities, including particularly creative forms of rape”. This did not mean that no reconciliation process took place. The very opposite is true. Non-verbal means of approaching violence were instituted at a local level. Gberie goes on to state that “In many communities, people sought to displace explicit verbal memories of this violence through a range of social and ritual practices – sacrifices, prayer, exorcism, funerals, ritual healing, church services”. A kind of collective and conscious amnesia proved the most important way of confronting the legacy of civil war. In direct contrast to our norm of truth telling as a verbal act, monologically linking the individual with the collective, embraced by international public policy makers, local modes of reconciliation and healing can be fundamentally different in character, or even unique.
Transitional justice, in its legal and international form, is shaped by Western values. However, transitional justice can take many forms, embracing the variety of local and regional contexts and post-conflict scenarios, some stable, some more flexible. It would be incomplete to leave us in a state of aporia, unable to move beyond the local or the Western. There are ways in which transitional justice, built up from its local and regional contexts, can take on global significance. Numerous faith organisations operate at the interface between the local and the global, transcending the conceptual divide between ‘the West and the rest’. Reconciliation traditions are found everywhere in a variety of traditions, in Arab, Buddhist and Christian contexts. Transitional justice as a value system has the potential to take on a global character, especially as the world has become ever more interconnected through hypermedia devices such as social networks.
Faith organisations have indeed played an important role in a number of post-conflict scenarios. The Mennonite Central Committee, an American faith group, has was an important actor in the South American civil wars of the eighties. It was also active in Northern Ireland, where it sought to combat sectarian division. In Somalia, it also pursued an approach which was more successful than the UN transitional reconciliation approach. One MCC worker writes that the organisation’s work shifted “from the UN’s focus on warlords in ‘peacemaking’” to “traditional, trusted meeting styles” that embraced the variety of local and regional leaders in Somali society. Just as UN transitional justice ideology seeks to embrace both long and short term goals, the MCC has been able to secure them in a variety of contexts drawing on global and local norms of reconciliation, rather than simply Western, ‘universalising’ ideas. By historicising the norms of international public policy makers concerning transitional justice, and by placing in their proper context local and regional techniques to secure transitional justice, we are able to build an account that is liberated from the language of the ‘universal’ or the ‘Western’. There are indeed potentials for creating a definition of transitional justice shaped by the local within a global sphere. In doing so, in what promises to be an ever more polarised international context, there lies the possibility of a conversation that is humane and shaped by values from every part of the globe.
In an interview with this magazine, Nick Cohen gave us this thought: “We have gone from Communism, to social democracy in crisis, to liberalism starting to feel like it is just another of those twentieth century ideologies that may not make it into the twenty first”. The ethic of transitional justice is also a part of this Enlightenment heritage, part of the promise of a world transformed. And it is this dream that is fast disappearing. It was a promise to transform man’s relations to the world, to replace darkness with light, confusion with clarity, and substitute the pure for the impure. This transformative ethic is a newer expression of an old, old hope. The great project has now given way under the pressure of the older divisions that run along ethnic and religious lines. And all that is left for us is to wonder at the pathos of this failure. That man’s liberation from his self-enforced minority, and man’s emergence from the old attachments, have come to an end.