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ADOLFO CERETTI/ALBERTO NOSENZO |
THE TRUTH AND RECONCILIATION COMMISSIONS:A JUSTICE LOOKING ALSO TO FUTURE GENERATIONS
ADOLFO CERETTIAssociate Professor of Criminology, Faculty of Law, Milano-Bicocca University, Italy; ISSD Assistant-Secretary-GeneralALBERTO NOSENZOJudge, Milan Court, Italy«the truth must dazzle gradually ... or all the world would be blind» Emily Dickinson1. The Rights of Future Generations
This work of ours sets out to make a contribution – within the sphere of the topic chosen for this Convention, the «Rights of Future Generations» – to the debate on International Criminal Tribunals and Truth and Reconciliation Commissions, which are by many now singled out as being meaningful and effective tools for the management of the periods of transition from an authoritarian regime to democratic rule a number of countries go through([1]). In confronting such a sensitive issue, fraught with social, juridical and philosophical implications, we have decided to privilege the analysis of some theoretical traits typical of the Truth and Reconciliation Commissions, devoting specific attention to the model of justice the Commissions draw inspiration from, that is Restorative Justice. In order to proceed in such a direction it proved first of all necessary to identify the theoretical framework within which any analysis of the Commissions must necessarily be viewed, whilst not losing sight of more general themes such as the meaning and role of historical «truth», the themes of forgiveness and oblivion related to the issue of amnesty, the significance and import of the narrative structure of a collective experience. Such theoretical considerations stem out of the specific experience of a country, South Africa, which opted for reconciliation but a few years ago, specifically through the setting up of a Truth and Reconciliation Commission (henceforth referred to as «TRC»). In our opinion, the issue of «future generations» is inseparable from that of the Commissions as such. Of course, the work of Commissions is entirely focused on the investigation of the past, on unveiling any violation of human rights and any abuse perpetrated, and does not have the present as its direct object. This undoubtedly stems from the attention – the legitimate attention – paid to the victims of such violations. Yet this is far from being the only goal pursued by a Commission: its attention is also addressed to the future, to the generations following the one that has had to live through a period – long or short that it may be – of violations and abuses. As we will see further on, re-activating the past or memory is a task that is directly related to the issue of the peaceful coexistence of future generations and cannot be based on oblivion of what has been. As the Commission's President Tutu (Tutu, 2000) has repeatedly stated, the Final Report on the TRC's work will take its place in the historical context of which «future generations» will try to make sense. The questions which pose themselves forcibly and spontaneously are the following ones: «Do future generations have any rights?». And: «What is the social milieu in which such rights are to be respected?» These are not merely philosophical speculations, but issues definitely bound to affect decisions in present action. In political philosophy said questions have found answers in the recent debate highlighting a paradoxical difference in opinion between those who believe rights are to be viewed within the context of a community and that only within a community can they be guaranteed (Communitarians), and those, the Liberals, who instead believe that, if the issue is broached seriously, individuals' rights should be made to prevail over the rights of the community. In a period in which welfare had not yet shown its limitations, it was Rawls (Rawls, 1972) among the Liberals, who insisted that it is of the utmost importance to observe how generations are placed in time, and who drew attention to the fact that any actual exchange between generations can take place only in one direction: while we are in a position to do something for the generations to come, they cannot do anything for us. That is, actual exchanges between generations do exist, but they are virtual and always mediated by a present which engages in self-study and self-adjusts in a possibly binding relationship with the future. Generations, their virtual relations and their interplay are nothing more than the world of symbols society consists of. Resta instead (Resta, 1997) calls attention to the fact that the term generations is complex, paradoxical, inasmuch as generations cannot exist as identitites if not in relation to a difference (other generations). Yet it was once again Rawls, this time in his more recent Political Liberalism (Rawls, 1994), who described society as a system of cooperation (the term to be interpreted – as we have just said – as a stable though virtual link, functional to a common task) over time, from one generation to the next. For the American philosopher, contractarian public ethics are to be set against the notion of society based on the endless interplay of generations, and he goes so far as to state that it is the way of thinking of and viewing society that is opening up. What is changing is the very grammar of viewing. Without espousing Rawls' theories, Resta remarks that nowadays the problems raised by ethics inform us about the limits of the present thus interrupting the soliloquizing temporal dimension of techne, which may be summarised in the expression: «we can do all we can do». This temporal dimension is interrupted when another language – that of ethics, as already said – transforms this soliloquy showing us that the space and time in which our lives unfold are neither unique nor absolute and that the idea of our fellow-beings deserves more attention. Yet, while enabling us to extend our vision to the future, such an approach ambiguously reminds us that the only life we can live is in the present. «As modernity draws to its end, – Resta points out – a subtle fear impels us to adjust our view of society so as to place individuals in relation to a spatially and temporally wider notion of our fellow-beings. The responsibilities are our own but it is future generations we are acountable to; there being no sovereign third-party to enjoin responsibility, responsibility mirrors itelf nakedly in the present, the contemporary» (Resta, 1997, p. 28). As we know, the emergence of such ideas echoes the heuristics of fear, an issue which Jonas has brilliantly dealt with (Jonas, 1984). He warns us that it is the anxiety created by the uncontrollable pace of technological time that creates the need to stop and think. As already stated, it is ethics that interrupts the soliloquy of technology and poses questions on the «imperative of responsibility» which also invests the social system, raising the issue of how another time, that of future generations, relates to the present temporal horizon. But how can one «identify» the rights of future generations? It should be made clear from the very outset that Jonas does not base his «imperative of responsibility» on the traditional idea of rights and duties, the idea grounded upon reciprocity, according to which my duty is the counterpart of another's right, which in turn is seen as the like of my own right; so that once certain rights of another are established, then my corresponding duty to respect such rights is established. For Jonas the traditional idea of rights and duties is unsatisfactory. Only what makes claims can have claims – what exists. Every form of life makes a claim to life, but the nonexistent makes no claims and can therefore suffer no violation of its rights: «The claim to existence begins only with existence». Yet Jonas's ethic is concerned precisely with this «not-yet-existent»: his «imperative of responsibility» is, as a matter of fact, independent of any idea of a right and a reciprocity. A right of the unborn to being born (of the ungenerated to generation) is simply not arguable. We are therefore confronted with a duty that is not the counterpart of another's right. Jonas therefore introduces the notion of the duty toward the existence of future mankind and the condition of future progeny, even if no descendants of ours are among them. The duty to care for one's children can be grounded on the factual responsibility of having originated their existence and then, in consequence, upon the right that pertains to these children insofar as existing, the duty toward the existence of future mankind does not call for the thorny task of grounding, since we need not fear the procreative drive may come to an end. More dangers seem to threaten the future condition of mankind. According to Jonas, the problem can be viewed in the following terms: «since there will in any case be later men, who had no say in their coming to exist, they will in their time have the right to accuse us who came before them of being the originators of their misfortune – if we have spoiled for them the world or the human constitution through careless and avoidable deeds. Whereas for their existence they can hold responsible only their immediate begetters (and even there have a right to complain only if the parents’ right to progeny can be questioned on specific grounds), for the conditions of their existence they can hold distant ancestors or, more generally, the originators of these conditions responsible. Thus, from the right of the anticipated being of later subjects there issues for us today, as the causative agents, an answering duty, which makes us responsible to them with those of our deeds whose effective range extends into such dimensions of time, space, and depth» (Jonas, 1984, p. 41) ([2]). 2. The Phase of Transition and the Role of Truth
In the second half of the Twentieth Century, the history of a number of countries was characterised by transition toward democracy after decades of authoritarian, dictatorial and military rule: in Europe, after the end of World War II and the fall of Nazism; still in Europe, but more recently, following the collapse of the Soviet Union; in South America, with opposition to the authoritarian regimes born of the military coups; and finally, in South Africa, following the end of the regime of apartheid (Goldstone, 1996, p. 485; Flores, 1999, p. 7). The path taken by those countries that proved to be capable of managing said transition in a peaceful way is undoubtedly a novelty and a trait peculiar to contemporary history. Where instead the passage, the transition of peoples has resulted in war as in former Yugoslavia or in a number of ex-Soviet Union Republics, this was due to complex causes, mirroring above all the controversial issues of national vindication and ethnical identity. The peaceful transitions, or negotiated revolutions, we have witnessed – the South African one being extremely significant as the country was on the brink of civil war – were as a matter of fact characterised by their non-violent nature, by the insistence on trying to come to a more or less official compromise between the authorities of old times and the movements embodying the new issues. In South Africa, in particular, the choice of a negotiated settlement was favoured by yet another consideration: even if it had resulted in improved living conditions for the black population, a violent clash would have inevitably resulted in an exodus of the whites from the country. And since it is the whites who controlled and control most economic activities, a further consequence would have been an economic crisis it would have taken the country decades to overcome. All this means, therefore, that among the considerations that led to privilege a compromise, there was the convenience of both sides. This approach has led on a number of occasions to an overlapping of the economic and political interests and the values and the socio-cultural needs of the defeated ruling class with those of the élites representing the new needs, but above all has entailed seeking a solution which would make such co-existence, such overlapping possible. The political sphere was undoubtedly the sphere in which such overlapping was less evident, following the more or less widespread turnover in the ruling class, while said overlapping was more marked in the economic sphere and within those institutions (the army, the magistracy, the higher echelons of the Civil Service) engaged in the research for a compromise and at times playing the role of guarantors of the agreements reached (Flores, 1999). Following a period of conflict, abuse and violation of human rights and leading to the restoration of democracy and the turnover of the politicians in office, negotiated revolution is a very delicate phase which entails a period of reconstruction. The strategic and political role of this phase (and above all of the procedures and the modes chosen to tackle the problem) is indeed that of reconstructing, creating a new understanding of the previous political regime in order both to legitimize the new political system and to delegitimize the old one and its ideology, drawing a lasting picture of past events([3]) (Teitel, 2000) (Gentili, Lollini, 2000). If on the one hand all this makes it possible to avoid further armed conflict and the unflagging resistance to change by the old ruling class, on the other hand it must not entail that the price to be paid for a peaceful transition is oblivion of the past. Negotiated revolution does not imply silence on the crimes committed (Flores, 1999). Peaceful transitions, as a matter of fact, imply the need to rediscover the history of the country and the irruption of individual and collective memory in the public debate, that is the need to find out what was so long hidden. In this process of rediscovery, a crucial role is played by the construction of a divided or shared historical identity within the single national realities, the single communities. Of course, the importance of the memory of a recent past cannot be identical in countries which have experienced violations and abuses of human rights often very different the one from the other([4]). That is why, in pursuing this recovery of memory, in pursuing its own «historical truth», every country embarks on a course of its own, by means of: a) the passing of political and moral judgements on the key representatives of the past regime; b) the debate on political responsibilities and on the causes of those events which, more than others, have imprinted themselves on collective memory; c) indictment of those responsible for the violations; d) the rediscovery of traditions banned under the authoritarian regime.
2.1. Individual and Collective Truth
Mention of memory brings us back to the main central issues of defining «historical truth», in the meaning it is invested with by the experience of the Commissions([5]). When a country where a Commission has been set up sets out to investigate its history, a dual dimension of truth emerges: - an individual dimension, related to the experience of the individual, which is highly «subjective» and coincides with memory, characterised by the presence of feelings and sensitivity. In this respect, «historical truth» is identified with the subjective perception of facts and events by the individual victim or persecutor; - a collective dimension, this too related to the experience of individuals but seen within the framework of community experience, resulting from the evidence gathered and any investigation carried out in order to reconstruct the historical picture of the violations committed by the past regime (Teitel, 2000; Villa-Vicencio, 2000). It is a truth resulting from a narration involving all the community to which the narrator belongs, so that the narrator reconstructs his/her truth for the community listening to him/her. But why is collective truth perceived as being so essential for the survivors of a regime? To begin with, because it is attributed a value per se. After generations of denial and lies, a burning, almost obsessional desire arises to know exactly what happened. Victims of torture are often more insistent in asking for the truth than in asking for justice. People who have been tortured do not necessarily and automatically wish their past tormentors to be sentenced and imprisoned. First and foremost they want the truth to be known (Cohen, 2001). This mental mechanism, writes Weschler (quoted in Cohen), is a mysterious, quasi magical mechanism, because often everybody already knows the truth, everybody knows who the torturers were and what they did; the torturers themselves know everybody knows and everybody knows they know. Why, then, this need to make such knowledge explicit? Nagel claims that the answer is to be found in the difference between the notion of knowledge and that of acknowledgement. One has acknowledgement when at last knowledge is officially sanctioned and, in the form of discourse, enters the public sphere (Nagel, 1989). Another question is related to the sensitivity of the victims, above all to the sensitivity of those whose family members and friends have gone missing. Although they might have lost all hope of ever finding their loved ones alive, there is a desperate need to know what has happened to them. The unidentified bodies in common graves require some form of symbolic burial. In one of his speeches, Tutu said: «I recall so vividly how at one of our hearings a mother cried out plaintively, 'Please can't you bring back even just a bone of my child so that I can bury him?». Finally, in order to understand the reasons impelling this quest for the truth, it might be very helpful to bear in mind that the TRC’s Final Report is replete with metaphors relating to the wounds, the indelible scars left by the past in the collective conscience. These scars often hide «still bleeding wounds» which must be reopened to be cleansed and treated. The collective dimension of truth contributes to the success of said operation.
2.2. Reactivating the Past
Both individual truth and collective truth are of the utmost importance in the experience of Commissions and testify to the twofold goal they set themselves: on the one hand, individual truth makes it possible to focus one's attention on the suffering of the victims, who are given an opportunity to recount their experiences; on the other, collective truth provides us with an overall picture of the violations, a description consisting of a number of individual stories told publicly, thanks to which it proves easier to distance onself, once the attempt to unveil «historical truth», albeit through such an unusual procedure, has been made. What makes the phase of transition so tricky is the fact that one mediates between individual and collective history, between individual and collective responsibility, between individual and collective truth. The different levels of truth have different roles and functions, yet they are all equally necessary: if historical and «judicial» investigation aim at a reconstruction and an understanding as «objective» as possible of the causes and consequences of and the responsibilities for the violations committed, personal truth, heard through the accounts of the victims and the perpetrators of the violations, apart from providing individual acknowledgement, leads perpetrators, victims and the communities to which they belong to take part in the shaping of a common memory and identity, by sharing and collating individual experiences. In such a perspective, the reactivation of a memory of a shared past helps take the first steps towards the recognition and acceptance of the others and respect for them (Toscano, 2000, p. 44), above all if such a process is invested with the political purpose of highlighting and helping identify the ties and bonds the two sides have, rather than the reasons for division and juxtaposition. The meaning attributed to the symbolic lieux of this reconstruction of individual and collective truth is that of creating a moment of transition from looking back to looking forward: «the revealed truth brings on the switch from the tragic past to the promise of a hopeful future» (Teitel, 2000); reactivating the past means – in this perspective – also indicating the possibility for political and social change: a) by helping to attribute individual responsibilities, thus avoiding the imposition of collective responsibilities on groups of an ethnic or religious or other nature. This way, on the one hand one limits the risk that hatred and lust for revenge might have repercussions on a group as a whole, on the other one seeks to ascertain individual responsibilities. This, of course, does not mean playing down any collective or institutional political and historical responsibilities nor does it mean the acceptance of «exemplary» trials against individuals. Indeed, reconstructing the nature and extent of the crimes makes it possible to unveil systematic and institutional patterns of gross violation of human rights or the involvement or acquiescence of large social, political or cultural groups; this kind of truth-seeking can help identify and demolish the mechanisms, the patterns of behaviour and the institutions responsible for the prolonging of the violations (Goldstone, 1996, p. 488; Calzini, 2000); b) by reconstructing and revealing what happened. This comes to constitute a form of official and public recognition for the victims, which certainly represents a first step towards reparation and reconciliation; c) finally, by offering an opening to the issue of forgiveness – an issue which we will discuss further on, but which it is necessary to examine when having to decide if it is best to reactivate memory or allow oblivion to prevail. In reality, the two paths, memory and oblivion of «historical truth», are not necessarily antithetical; the issue can instead be dealt with differently by considering, side by side with «historical truth», the possible effects of the revelation and transmission of a «narrative» truth, which has a lot to do with story-telling. On examining the issue from this point of view, Bettini (Bettini, 2000) considers the two alternatives of oblivion of the past and recollection as both essential for the shaping of a memory, which is also a «unifying» collective identity. In such a perspective, memory privileges the transmission of «what unites» and decides to set aside «what has divided»; a choice, this, which favours a collective identity based on recognition of the fact that all the parties involved have a common history. It has been said by many, and first and foremost by the TRC promoters, that what is at stake here is the production of a new collective identity, through the reconstruction of a common memory and a shared vision of the past. Though not wishing to deal with the complex issue of identity([6]), we believe that the interweaving of narratives and hearings, of explicit recollections and oblivion, rather than the birth of a collective identity constitutes – though less ambitiously – an opportunity for the healing of the statement-givers, making it possible to add details to the truth to be shared and to start building pathways to mutual recognition and reconciliation, by attaching importance to individual experiences ([7]).
3. Judicial Truth and Historical Truth
Emphasizing the individual and collective dimension of truth cannot excuse us from analysing, albeit briefly, also other notions of truth, undoubtedly more deeply rooted in our heritage and which we have recently mentioned: judicial truth and historical truth. When analysing the latter concepts – as we will clearly see further on – we are far removed from the notions of truth (individual-narrative, collective-social and restorative) elaborated by the Commissions([8]). Nevertheless, we must briefly examine them if we are: a) to reason on the choices made by the other model, that of «victors' justice» which we will deal with, though not at length; ([9]) b) to understand, through juxtaposition, the deeper meaning of the work carried out by the Commissions.
3.1. Historical Truth
That history, law and trials are strictly interrelated is a known fact. In such a context the notion of «historical truth» takes on a meaning – let us reaffirm it clearly, though we run the risk of seeming to be pedantic – altogether different from that attributed to it by the experience of the Commissions ([10]). As Ricoeur points out (Ricoeur, 2000), the specific roles of the historian and of the judge impose on both the need to confront themselves with the issues of truth and justice, with regard to which they undertake, as it were, to be impartial, given the role of «third party» taken on (and attributed to them) in the social consortium ([11]). It is Ginzburg, in an epoch-making essay, Il giudice e lo storico (The judge and the historian, Ginzburg, 1991), who reminds us that after a series of changes late Nineteenth-Century political historiograhy took on – or, rather, claimed it was taking on – a judiciary physiognomy. Carefully assessing evidence, witnesses' accounts and documents meant for the historian of that day and age ([12]) focussing on the events (be they political, military, etc.) which could be taken to result from the actions of one or more individuals; in doing so, the historian stood above disputes, not viewing as relevant all those phenomena that did not call for explanation (for example the history of social groups, of outlook, etc.). In the following years, the massive cultural impact on experts in the field exerted by the review Annales d’histoire économique et sociale, founded in 1929 by Bloch and Febvre, and the ensuing loss of interest in the histoire événementielle, led those who were confronted with the dilemma if the historian was to judge or understand, to opt for the second alternative, thus renouncing any attempt to interpret the State's superior reasons. Nowadays, according to Ginzburg, further enriching the range of existing explanations, there is a growing intolerance by historians towards the notion of «evidence», a term which – instead – used to justify the analogy between the work of the historian and that of the judge. For many a historian such a notion is outmoded (like that of truth), while far more credit is given, also overseas, to the notion of representation([13]). But doesn't setting aside the notions of truth and evidence eventually produce a sad brand of skepticism? Ginzburg's opinion is in this respect categorical: the notions of truth and evidence are essential elements of the historian's trade, as also evinced from the fact that the historian is entitled to raise doubts also where a judge would enter a nonsuit. Paradoxically, it is this difference that brings out the element common to the trades of judge and historian: the use of evidence, that is. In any case, if it not possible here to deal with the issue, if not through a few occasional cultural references, likewise we can do nothing more when turning our attention to another highly controversial issue: that of judicial truth.
3.2. Judicial truth
On the theme of judicial truth, Ferrajoli (Ferrajoli, 1989)([14]) has written pages we cannot overlook. What a criminal judge ascertains and declares to be «true» – unlike the truth ascertained and declared by the Commissions – is related to the analysis of the meaning of the predicate «true» associated with the propositions motivating a judicial ruling. «If on a theoretical level one may admit that ‘truth is in the facts’ – writes Ubertis, one of the most important Italian experts on these matters – in trials, where truth-seeking is irrenounceable (…), one cannot do anything more than ascertain ‘the truth of a proposition’: what has to be verified, therefore, is not a ‘fact’ but a ‘statement’» (Ubertis, 1993, p. 58) ([15]). Let us take as a starting point a proposition such as: «So-and-so has (or has not) committed the fact denoted by law as an offence»; Ferrajoli specifies that such a proposition can itself be broken down into two propositions: one factual or de facto (the truth of which can be ascertained by proving the fact took place), the other judicial or legal (the truth of which is judicial, in as much as it can be ascertained by means of the interpretation of the meaning of the legal provisions classifying the event as an offence) (Ferrajoli, 1989, p. 21). Such interpretation: a) offers the advantage of partially re-defining the intuitive notion of truth as «correspondence» (that is, the notion enclosed in the Enlightment ideal viewing jurisdiction as mere «verification of the event» and «mouthpiece of the law»), establishing that the term «true» can be employed without any metaphysical implications; asserts that the term «true» designates here only conformity or difformity from jurisdictional propositions([16]); b) defines judicial truth not as «absolute», «objective» but «relative», «approximate» in relation to the principle of «perfect correspondence», which becomes a «regulatory principle» or an «extreme model» in jurisdiction. It is in this interplay of reasons, that makes of judicial truth an «approximate» truth that we can trace, in Ferrajoli's ideas, some interesting analogies and differences between the work of the judge and that of the historian, above all because judicial truth cannot be affirmed, like historical truth, on the grounds of direct observation. As a matter of fact: a) «Factual judicial truth is a peculiar form of «historical truth», related to propositions relating to past events, and as such not directly accessible to experience…» (Ferrajoli, 1989, p. 24); b) juridical judicial truth is instead a truth we might term classifying, inasmuch as it qualifies accepted historical facts on the grounds of the categories supplied by legal jargon and processed through the interpretation of legal language. Given these premises, if we confront the stritctly interrelated issues of verifications and verificability of the judicial propositions drawn up by the judge, we will notice they are strictly related to the issues the historian must deal with: a) the truth of factual verifications can be enounced only on the grounds of the «effects» produced, that is on the «signs of pastness» traced in the present in relation to past events. Like the historian, then, the judge cannot examine the fact, which eludes the direct observation of the one as of the other, but only evidence of the fact, which with Ubertis we define as «that mechanism, that complex of elements and activities having the function of consenting the ascertainment of the truthfulness or untruthfulness of one of the factual enunciations integrating the thema probandum» (Ubertis, 1979, pp. 89-90). It follows that both «factual judicial truth» and «historical truth» «result from an inference of the proven facts of the past from the probatory facts of the present … the premise including a description of the event to be explained and of the evidence provided and… in its conclusion the enunciation of the event which ones assumes has been proved by the premises and which equates to a possible explanation of said events» (Ferrajoli, 1989, p. 26) ([17]); b) judicial verification is also the result of an inference: here too there is no direct observation of the events but a reasoning – termed «subsumption» – consisting in a classifying procedure based on deduction([18]). Moreover, just as the historian is necessarily selective in his construction, inevitably swayed by historiographical interests, points of view and interpretative hypotheses, the subjectivity of the judge also massively impacts on the judicial enquiry([19]), which is all the more serious because while historiography is capable of self-correction, for the judge a judicial mistake is never fecund. In some respects, therefore, there seems to be an overlapping of the figures of the judge and of the historian. It should be added, however – and Ferrajoli would certainly agree with us – that such overlapping is to be viewed with mistrust and perplexity: as a matter of fact, it is already on the «… level of the language that the historian must be careful not to reduce himself to the kind of language a judge uses, nor must he use the same concepts, methods or, even worse, set himself the same goals» (Flores, 2000). Let us consider by way of example that, following Pinochet's return to Chile, Antonio Cassese, formerly Chairman of the International Criminal Tribunal for the Former Jugoslavia, recommended that, so that the past should not be forgotten, a criminal trial be started, in the course of which historical facts could be gathered and viewed through rigorous examination and evaluation procedures. This is, as a matter of fact, a statement which might be derived from the delusion of establishing together both «judicial truth» and «historical truth», or of the fallacy that the two truths may be exchangeable. Instead, unlike justice, history cannot boast any «official vestals» capable of coming up with a fitting close (judicial truth) to the events under examination; history is necessarily the subject of verification and revision, and its canons are more ambiguous than those of criminal justice (Flores, 2000). Such ideas have been successfully dealt with by Ricoeur (Ricoeur, 2000), who calls attention to the fact that what creates a marked difference between the judicial approach and the historiographical one – especially when it is the same facts that are being «judged» – is above all the ruling , inasmuch as the event upon which judgement has been passed with an irrevocable ruling can only be challenged by public opinion, but cannot become the subject of a new impugnation, save for review, which Garapon, however, rightly termed «a single-shot weapon». That is: non bis in idem. In other words, the judge must reach a conclusion, he cannot deny justice: he «must» decide in order to avoid that others should decide, by having recourse to other codes. The law states that his decisions «have to be», and once the communication network has been activated – for the most diverse reasons – in its communicative mechanism, the same law states which languages shall be relevant. It is Resta who reminds us: (Resta, 1996, p. 301): «One cannot decide by having recourse to other codes because the law explicitly lays it down that one cannot decide by having recourse to other codes: say the ethical or economic code... which does not mean that all these codes are not relevant, indeed they always are, but only under the conditions to which the law recognizes relevance». The judge, therefore, must conclude, he/she must re-establish a correct distance between the defendant and the victim, by relying on a basically binary logic: the defendant is either guilty or is not guilty. The historian cannot carry out such functions nor does he wish to do so. If he falls prey to the temptation to take on the role of «historical judge» – Ricoeur points out (Ricoeur, 2000) – the price he will have to pay will be that of acknowledging he has expressed a partial, militant view. But apart from this specific instance, it is the opening itself to the possibility of revisitation by the scientific community of historians that marks the difference between historical evaluation – as such always temporary – and a final judicial sentence. A further specific difference between historical and judicial enquiry is that the latter extends to include new sources of evidence (interrogations, witness accounts, confrontation, experts' opinions). As Ferrajoli bluntly puts it: «A trial is, as it were, the only instance of ‘historiographical experimentation’: in a trial sources are made to intervene de vivo, not only because they are acquired directly, but also because they are confronted the one with the other, undergo cross-examination and are made to reproduce, as in psychodrama, the events being judged» (Ferrajoli, 1989, p. 32). All this goes to prove that in trials – unlike what happens in historical investigation – the final decision derives from the active working of the dialectics engaged in by the parties, and not only from the acknowledgement of external reality. The fairness of the sentence stems above all from the work done to reach such a decision, so much so that any elements gathered violating the rules disciplining cross-examination cannot contribute to the shaping of the judge's ruling, consisting as they do of limitations of the right to defend oneself and ways of eluding rules meant to protect defendants' rights (Ubertis, 1993). Any evidence gathered violating said principles cannot be used. Such limitations do not bother the historian.
4. The International Experience of Countries in Transition
The above considerations on subjective-individual-narrative «truth» and on collective-social-community «truth» represent the theoretical premises to understand the reasons for that kind of agreement we have already designated with the term negotiated revolution, a mechanism privileging different objectives from the classical one of the punishment of the perpetrators («victors' justice» ([20])) as it privileges the search for «judicial truth.» Anyway, the problem common to all the countries engaged in the transition towards democracy following a period of repression and human rights violations is that of deciding how to deal with their past and by which institutional means (Garrett, 2000): one the one hand, the problem is that of how to relate to the old ruling class responsible for terrible abuses; on the other, the perplexities concern the victims of said violations. At present, the possible tools to which one may have recourse in order to reconstruct truth (both collective and individual) and promote the re-activation of memory are therefore multifold, just like those one may have recourse to when assigning responsibility. From the political-diplomatic point of view one uses the symbolic term of post-conflict peace building to refer to all the tools aimed at the reconstruction of a social fabric making for mutual understanding and for co-existence after periods of strife and violence (Toscano, 2000, p. 43). Juxtaposed to the model created in Latin America after the end of the military dictatorships and in South Africa (Truth Commissions; see Schey, 1997, p. 332) there is the Nuremberg model (Taylor, Italian translation, 1993) – historically older and defined as «victors' justice»; there is also that opted for by Central and Eastern Europe following the fall of communist regimes (Lustration Mechanism([21])), and a further model was chosen to deal with the crimes committed during the conflict in former Yugoslavia (International Criminal Tribunal for the Former Yugoslavia). Given the variety of possible options, the path taken by the Truth and Reconciliation Commissions differs from that taken by the Criminal National and International Tribunals. It must be added that, apart from the historical and political reasons for the negotiations conducted in the single countries and apart from the objections and perplexities a solution of compromise can often arouse, ([22]) by now it is being insistently asked that international codifications should foresee, in the perspective of Restorative Justice, mechanisms other than international criminal trials. More specifically, it is being asked that enquiry Commissions, both national and non-national, be set up, that the perpetrators be removed from office, that the victims receive reparation and that counselling be provided for them (Bassiouni, 2000). But before discussing these new experiences more at length, we wish to recall, even if not in detail, the principles on which «victors' justice» is based, which basically calls for judicial truth-seeking.
4.1. The Judicial Path: Criminal National and International Tribunals
The model of the Criminal National and International Tribunals has its historical and cultural roots in the Nuremberg and Tokyo trials, which in turn look back to the trials celebrated after World War I. In the Nuremberg trial, the punishment of Nazi criminals was made possible thanks to the application of «victors' justice», a formula used to refer to the most critical aspect of this model, that is to the fact that the Military International Tribunals judged exclusively the crimes and the violations committed by the higher echelons of the Nazi hierarchy, and not, instead, the crimes committed by the allies. Suffice it here to recall but an example: at Nuremberg, the act of indictment did not contemplate the German bombings with the V1s and the V2s simply because in 1942 the allies themselves had decided to raze to the ground the German towns, regardless of their strategic importance in the military field (see Alfred-Maurice de Zayas, Italian translation, 1996, p. 112). Although the Court (whose Statutes, enclosed to the London agreement, contained the most important legal provisions) was set up as an International Court, as a matter of fact it might be better defined as an Inter-allies Occupation Tribunal, as Germany had not accepted the creation of a supranational body. The Tribunal was an institution based on an agreement against a third party. And as a matter of fact, the Nazi defence-lawyers raised as a first objection, then overruled by the Court, that of its incompetence through lack of jurisdiction (Alfred-Maurice de Zayas, Italian translation, 1996). All this reminds us of what is now happening before the International Criminal Tribunal for the Former Yugoslavia, where, upon the opening of the trial for genocide and human rights violation against Slobodan Milosevic, former President of the Yugoslav Republic, Milosevic challenged the legitimacy of the institution of an ad hoc Tribunal with arguments partially re-echoing those used in Nuremberg, which goes to prove that to this day a number of knots remain to be untied – though the issue was partially dealt with in Rome in 1998, with the approval of the Statutes of the International Criminal Court (Balboni, 2000). It is also true, however, that the Nuremberg model, whilst embodying «victors' justice», also helped provide a definition of the category of international crimes. If we have now created an International Criminal Court (although ratification of the agreements is likely to take quite long), it is because an international consensus has been reached as to what is meant by international crime and people at large have been sensitized to the problem (Calzini, 2000), which is a long-term effect of Nuremberg. In other words, what was then held to be extraordinary is now viewed as «normal» (Teitel, 2000). Also the positive experiences of the ad hoc International Criminal Courts partially find their origins in the paradigm of «victors' justice». Apart from the above-mentioned institutional subjects, who have to a greater or lesser extent been legitimated by that experience, also the legal classification of crimes adopted in Nuremberg – crimes against peace, war crimes and crimes against humanity([23]) (see Alfred-Maurice de Zayas, Italian translation, 1996) – helped international lawyers start to think about and work on the issue, thus leading to the approval of a number of UN conventions. If the Nuremberg experience proved to be decisive in developing modern sensitivity to the issue of international criminal responsibility, it is also true that «victors' justice», fifty years after its most complete historical manifestation has – inevitably – come in for a lot of criticism. If one temporarily overlooks their symbolic significance and their capacity to embody a desire for punishment or retaliation, the choice of a judicial trial, the desire to seek a judicial truth([24]), – the application of the principle of «victor's justice» –, have left a number of unresolved issues. As a matter of fact,: - the number of perpetrators found guilty has been so low as to prove meaningless in spite of the legal provisions and political intentions which often had as their avowed aim that of bringing to justice large groups of people; ([25]) - the victims have received no recognition and, indeed, have publicly declared they felt excluded from the procedures of reconstruction following the violations suffered; - the persecutors, instead, have often felt unjustly indicted for facts they had often committed in complicity with large segments of the communities they belonged to; - the community has been apparently pacified but a number of divisions and misunderstandings deriving from the absence of a process of reconstruction and the shaping of a common identity through the seeking of a shared «historical truth» persist – divisions which have periodically surfaced as resentment and lust for revenge (Llewellyn-Howse, 1999, p. 358; Flores, 1999). Anyway, everytime the judicial approach and «victors' justice» are taken to be viable solutions, they will inevitably place at the very heart of the public debate the persecutors and their judges (Joinet, 1997), whilst at the same time denying room for the victims' deeper needs, such as the right to actively contribute to the reconstruction of the historical-collective dimension of truth, the right to reparation. The considerations made for the International Criminal Courts also apply to the choice of opting for the judicial approach with the celebration of domestic criminal trials; indeed, in such an instance, the doubts as to the advisability for countries in transition to embark on such a path are even greater. Apart from the unsettled issues listed above, the fact that the task of restoring justice is delegated in such cases to that same magistracy who administred justice in the years of the dictatorship is a factor which – coupled with the lengthy proceedings and the difficulty of dealing with the high number of complaints filed – contributes greatly to frustrating and dashing the high hopes set on «victor’s'' justice». Such perplexity, after fifty years, is still felt in Italy when one considers the period immediately following the end of World War II, characterized by the institution of an incredibly high number of judicial proceedings against Fascist regime representatives. Historical records prove that, following the impressive number of complaints filed as soon as the hostilities came to an end, the early proceedings embarked upon led to very severe sentences, but that sentences grew milder and milder, eventually leading to a deluge of acquittals and anulments following the June 1946 amnesty – the result, from the judicial point of view, of the tendency to acquit inaugurated by the Court of Cassation ([26]). Given the nature of our work, we are not in a position to discuss Italian history following the fall of Fascism in detail; what can be said is that the harsh criticism levelled already at the time at the judicial approach which was adopted in the transitional phase still holds true (Crainz, 2000). Failure to reactivate memory at that given time in history mirrors itself in a debate still raging in which the failure to understand a number of episodes of violence of the day is still sadly felt ([27]).
4.2. National Lustration Mechanisms and Civil Remedies
Before going on to discuss the Commission model, we would like to briefly consider two other tools: the Lustration Mechanisms and Civil Remedies. Lustration Mechanisms are part of a purging process, adopted above all in the former communist countries, whereby individuals who supported or participated in violations committed by a prior regime may be removed from the position still occupied and barred from positions of authority or elective positions. These are political sanctions of which it has been said they risk affecting whole classes or groups of people without accounting for individual responsibilities (Ellis, 1996; Bassiouni, 2000; Boraine, 1994). Such measures were not taken into account in the TRC experience. The option of civil suits includes, instead, the right of victims and of their heirs to start a lawsuit to obtain protection, including economic damages, as the result of an individual or group claim.
4.3. The Truth and Reconciliation Commissions
The paradigm inspiring traditional criminal proceedings stands in juxtaposition to that of the Truth and Reconciliation Commissions, ([28]) viewed not necessarily as an alternative to, but possibly as a way of integrating the former. To begin with, Commissions may occasionally not be aimed at the twofold purpose of Truth and Reconciliation; at times indeed they are only Truth Commissions, when they resemble more closely traditional enquiry commissions than the kind of commission we are about to discuss, that is Commissions also foreseeing reconciliation among their goals. Such a goal obviously impacts on the activity of the Commission, starting from the planning of the work to be done to the way victim hearings are conducted, from the response to persecutors to the drawing up of a final report. As a rule, Commissions symbolically represent «bridges» between the past and the future and are perceived by the collectivity at large as tools capable of helping us interpret the changes taking place and of representing a turning-point and a fresh start as compared to the previous power structure (Goldstone, 1996, p. 493). As regards the way of interpreting the transitional phase, it is still necessary to remember that, even if the hope expressed when a Commission is set up is that it may reduce the likelihood of such atrocities and abuses being repeated, the Commission's work will impact only indirectly on future political choices, investigation centering instead on past violations. Yet a new political line-up may view the work done as a meaningful and, in a certain sense, community-shared starting-point to promote policies more attentive to and more respectful of human rights (Hainer, 1994, p.608; Hamber, 1995). The work of a Commission can, however, even more directly contribute to reducing the risk of new abuses if among the tasks it is attributed there is also that of submitting recommendations and proposals for reform to the new institutions, or of identifying support measures for the victims who have testified (Hayner, 1994, p. 609). The final reports of some Commissions, for example, (and among them the TRC's Final Report) included recommendations of this kind and raised issues such as: - the consolidation of new democratic institutions; - the reform of military apparatuses; - the reform of police apparatuses and of the legal system; - the introduction of measures for the promotion of national reconciliation; the introduction of reparation measures for the victims of violations and abuses. It is however true that often such recommendations are not foreseen as binding for the new institutions. The Truth and Reconciliation Commissions are, therefore, technically speaking, institutions created to investigate a past of human rights violations at the international, national or regional level. Although each Commission presents peculiar traits, all of them are born from the dynamics of transition here above described and generally set themselves similar objectives: - reparation for the victims; - the reconstruction of the historical-collective dimension of the violations; - community involvement in a reconciliation project; - the involvement of the authors of the violations in a project of disclosure and awareness of their individual responsibilities (Allen, 1999, p. 315). As affirmed by Archbishop Desmond Tutu when speaking of the TRC, the issue of restoration takes on a central function in the experience of the Commissions which is inspired to Restorative Justice in relation to which the interests and needs both of the perpetrators and the victims become the central and main consideration (Gentili, Lollini, 2000). Unlike «victors' justice», Restorative Justice promotes reintegration into society of the perpetrators, posing this requirement on the same level of importance as the healing of victims through recognition of their suffering. It is not possible here to examine at length the issues co-occuring in Restorative Justice (Ceretti, Mannozzi, 2000), a term employed to describe a phenomenon which is very wide in scope and with a content which is multidirectional. Zher, in fact, defines Restorative Justice as a model of justice which «involves the victim, the offender and the community in a search for solutions which promote repair, reconciliation and reassurance» (Zehr, 1990, p. 181). Similarly, Wright sees it as avoiding that one ill be added to another (suffering the imposition of the punishment added to the suffering caused by the offence), in order to devote every possible effort to the real protection of the victims through a process of reparation (Wright, 1991, p. 112). The most commonly accepted definition of Restorative Justice is the one proposed by Marshall: «Restorative Justice is a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future» (Marshall, 1999, p. 7).
4.3.1. The Commission's constituting elements
In spite of the wide range of possible options – after all they are institutions influenced both by the historical and political climate in which they are set up and by the groups which in the transition phase manage to exercise a greater decision-making power – the Truth and Reconciliation Commissions refer to a model including the following characteristics: - the activity of the Commission focuses on the past, while it does not investigate the respect of human rights in the period in which it is set up; - the attention of the Commission is not addressed to a specific event, but to the reconstruction of an overall picture of the abuses and violations of human rights recorded in a given period of time defined when the Commission is set up; - the Commission, which is given a temporarily predefined mandate, ceases to exist when a final report containing the outcome of the investigation and any recommendations is submitted; - the Commission must have the necessary autonomy to access essential information and to carry out the investigations needed for the historical reconstruction of events; said autonomy can vary significantly; - uncertain is the aspect referring to the extent of the Commission's mandate. As a rule, there seems to be agreement that the terms of the mandate should be sufficiently ample and flexible, so as to make it possible to investigate all forms of abuse, allowing for a certain degree of autonomy which will enable it to identify the most significant cases or appropriate procedures (Hainer, 1996, p. 179). Many Commissions have operated within a very rigid and limited mandate; ([29]) - there is widespread and heated debate about the advisability for a Commission to disclose the names of those responsible for gross violations of human rights (Gentili, Lollini, 2000). The choice of the one or the other option has to take into account two opposing principles: on the one hand the due process principle, which establishes, among other things, that everybody is entitled to defend himself/herself in the course of a trial before being declared to have been responsible for the violations – a principle which would be violated if the Commission's report were to disclose the names of the persecutors without giving them a chance to defend themselves; on the other hand the truth principle, according to which making the whole truth known implies disclosing the names of the people responsible for the violations, once their guilt has been proved beyond all reasonable doubt([30]). Above all, the description of the main features of the Commissions makes it possible to highlight an onthological difference between this paradigm and the judicial one. Trials before the Criminal National and International Tribunals can no doubt contribute to demonstrate the extent and the seriousness of the violations and the abuses committed. The fact remains that judicial enquiry focuses on the specific actions of single individuals, without setting itself the goal – in our opinion irrenounceable – of investigating and bringing to public attention the whole picture of the violations. Indeed, to think, as a matter of fact, that a trial can address this need means deluding oneself – as already hinted when speaking of Pinochet's Chile – that one can reach both judicial and historical truth. Given these premises, the reconstruction of the past could be left exclusively to the Commissions, thus avoiding the risk that the Tribunals might – even if indirectly – be attributed a function alien to their competences and which may be potentially dangerous given their essential duty to guarantee the impartiality, objectivity and non exemplary nature of the trial. In reality, one cannot rule out that, as in South Africa, it may be possible at the same time both to set up a Commission and to institute legal proceedings against individuals responsible for crimes (Bassiouni, 2000), even if, historically speaking, there have been very few proceedings instituted after the submission of a Commission's final report ([31]). Taking into account the traits peculiar to Commissions, with a view to attempting to avoid their being unduly influenced by the circumstances and any display of clout, and to avoid, therefore, that their flexibility might prove to be a weakness, in 1996 the United Nations came up with a first detailed list of recommendations for the criteria to be adopted in setting them up (United Nations, 1996). This is a carefully detailed document constituting an important contribution towards the definition of an as yet unsettled issue (Hainer, 1996). From all the points made, next to the general recommendation in favour of the creation of Commissions for the historical reconstruction of violations, there emerges the need to promote practices aiming at recognizing a «right to truth». In particular, it is foreseen that: - the components of the Commission be unmovable; - the evidence emerging from the investigations be safeguarded for a possible use in successive trials before criminal courts; - the names of those responsible be disclosed; - the final report be published and divulged; - that measures be taken for the preservation of files and to avoid the destruction of documents. The Commissions can be set up or supported: at a national level by the government or Parliament; at the international level by the United Nations or by NGOs. Working under the auspices of the United Nations may involve some positive([32]) practical aspects but also some drawbacks([33]), which may make it preferable to set up a Commission completely internal to the country involved (Hainer, 1994, p. 642).
4.3.2. Critical Aspects: an Outline
Besides allowing for a first theoretical reconstruction of their principles and guidelines, the experience of the Commissions, set up in recent decades, has also highlighted a number of critical issues on which the debate is still open. These are, in short: - the choice itself of considering the search for and diffusion of «historical truth» (in its widest acception) as a principle of justice necessary to reconciliation and peace-building – let us remember here the considerations on the positive role which we believe the reconstruction of individual and collective truth and the reactivation of memory have – is not accepted unconditionally. In particular, some have also challenged the advisability of circulating a final report in a moment of transition characterized by criticality and institutional fragility (Woods, 1998, p. 83; Hayner, 1996, p. 176). As a matter of fact, this is not an altogether theoretical issue, as there are countries which, in spite of having just been through a period of civil war or of terrible violations, have shown no interest in investigating the most recent events (in Mozambique and in Angola the opposing parties have refused the proposal of some human right organizations to set up a Truth Commission); - a relevant limit is also represented by the fact that, as a rule, the Commissions are not empowered to carry out investigations (they are not entitled, for example, to summon witnesses). The TRC constituted an important exception in this respect because it was endowed with ample powers of investigation and could link up in some cases with the judicial authorities and the police; - it is also necessary to consider a further possible limitation to the reconstruction of the picture of the violations([34]): the difficulty or, sometimes, the impossibility to investigate individual cases when one is in the presence of an elevated number of abuses and widespread violations. A country, above all when going through a delicate phase of transition, rarely has the resources or knowledge needed to investigate all instances of individual violations, also if the evidence is easily accessible, managing only to outline a general truth, according to some «models» of repeated violation. Such an outcome may well engender – as in the case of «victors' justice», though to a lesser extent – feelings of frustration among the victims, who often give evidence hoping that their personal cases may be thoroughly investigated; - with the exception of the TRC, ([35]) the Commissions set up so far have not been legitimized through democratic means. In periods of transition, as a matter of fact, one is unlikely to have conditions conducive to a public, political or social debate or to a referendum aimed at making the people choose. Often, the facilities needed for elections do not as yet exist, which would instead be of the utmost importance, since the objective is that of setting out on a common path, based on the analysis of past events and the idea of turning over a new leaf. In conclusion, the theoretical picture is still quite complex: the decision to set up a Commission, as a matter of fact, entails not only the evaluation of the social, political and economic circumstances making it advisable, but also makes it imperative to solve in one direction or the other the endless issues concerning its actual setting up( |
