Understanding the Age of Transitional Justice

Nanci Adler

• Publisher: Rutgers University Press
• Year: 2018
• Print ISBN: 9780813597775
• eBook ISBN: 9780813597782
• Topic: Politics & International Relations
• Subtopic: International Law
• Index: Politics & International Relations

Since the 1980s, an array of legal and non-legal practices—labeled Transitional Justice —has been developed to support post-repressive, post-authoritarian, and post-conflict societies in dealing with their traumatic past. In Understanding the Age of Transitional Justice, the contributors analyze the processes, products, and efficacy of a number of transitional justice mechanisms and look at how genocide, mass political violence, and historical injustices are being institutionally addressed. They invite readers to speculate on what (else) the transcripts produced by these institutions tell us about the past and the present, calling attention to the influence of implicit history conveyed in the narratives that have gained an audience through international criminal tribunals, trials, and truth commissions. Nanci Adler has gathered leading specialists to scrutinize the responses to and effects of violent pasts that provide new perspectives for understanding and applying transitional justice mechanisms in an effort to stop the recycling of old repressions into new ones.  

PART I THE COMPLEX RELATIONSHIP BETWEEN TRUTH AND JUSTICE

1 • SWINGING THE PENDULUM

Fin-de-Siècle Historians in the Courts

VLADIMIR PETROVIĆ

The extraordinary surge of human rights transgressions and the simultaneous rise in awareness about their disastrous effects remain one of the central paradoxes of our times. Torn between Auschwitz and Nuremberg, described both as the age of extremes and an age of transitional justice, the decades since World War II have been marked by an unprecedented demand to address historical wrongs. Whether through academic debates and truth commissions or lustration procedures and criminal trials, our encounters with the past invariably appear in a complex high-profile context in which law, politics, history, and memory are intertwined. This tectonic shift has affected a number of disciplines that traditionally deal with the past, challenging their practitioners to rethink the purpose of their work. The historical profession especially has been engaged in considering the implications of this change, which calls on historians to take an ethical stand regarding the atrocious past. A once marginal topic has achieved undisputed importance: “We are all historians of human rights,” proclaimed Linda Kerber, the president of the American Historical Association in 2006.¹

However, such an understanding hardly translates into a consensus on the professional responsibilities of historians. Some have readily taken part in proceedings aimed at undoing the consequences of historical injustices, whereas others have expressed concerns. “Being an expert witness in a judicial case allows historians to use their historical training and historical judgment to benefit society,” wrote Charles Bolton, who took the stand in the 1981–1982 trial on creationism in Arkansas public schools. For Morgan Kousser, who at that time was starting his long involvement as a historical expert in the voting rights trials, testifying was an opportunity to “do justice and scholarship at the same time.”² Others, such as Henry Rousso, refused to perform such a role on the basis of a different set of ethical considerations: “In my soul and conscience, I believe that historians cannot be ‘witnesses’ and that the role of ‘expert witness’ rather poorly suits the rules and objective of a court trial. It is one thing to try to understand history in the context of a research project or course lesson, with the intellectual freedom that such activities presuppose: it is quite another to try to do so under oath when an individual’s fate hangs in the balance.”³

The rich literature devoted to the troubled relation between historical truth and legal justice confirms these impressions of the polarized nature of the debate—the pendulum does, indeed, swing very sharply.⁴ However, it remains largely unclear when the swing started. Historical expert witnessing, as David J. Rothman reminds us, grew prominent with the end of the Cold War, but “in fact it has been a common occurrence for some fifty years.”⁵ Hal Rothman concurs: “Since the 1950s, historians have been active in legal proceedings as experts and adversaries.”⁶ Indeed, it is difficult to overlook the importance of the postwar wave of war crimes trials or the desegregation efforts in the United States and the Native American claims cases appearing around the same time. However, obscured beneath these layers is important prehistory, as historians have navigated these murky waters at least since the end of the nineteenth century. The purpose of this chapter, then, is to unearth and bring into the discussion early instances of historical interventions into legal proceedings in order to highlight a structural and enduring (if ambiguous) connection between these disciplines in the process of confronting the past abuses of power.

HISTORY AND THE LAW

How far does one go back into the troubled relations between history and law? It is worth noting that their complex interdependence can be traced back to their emergence in antiquity. The ancient Greek word for historian, ίστωρ (hístōr), denotes “the one who knows,” hence the expert, and in some contexts, even investigator and judge.⁷ This bond was also rediscovered during the Renaissance: “Historical studies must be placed upon a solid foundation of law, and jurisprudence must be joined to history,” wrote François Baudouin in 1561.⁸ Ever since, there has hardly been a shortage of references to the proximity between these areas of human interest. In 1814, Joseph von Hormayr, for one, was praising “history, that pure two-sided mirror of judgments past and judgments still to come, that inexhaustible source of universally beneficial experience, and incorruptible judge of those who have no other judge.”⁹ A similarly powerful understanding was immortalized in Schiller’s and Hegel’s vision of Weltgeschichte als Weltgericht. This vision persisted in frequent, if implicit metaphors of the tribunal of history or the judgment of history.

However, these parallels were worlds apart from the aspirations of the founders of historiography. “To history has been assigned the office of judging the past, of instructing the present for the benefit of future ages. To such high offices this work does not aspire: It wants only to show what actually happened [wie es eigentlich gewesen],” wrote Leopold von Ranke in his much-quoted dictum, which has guided generations of practitioners.¹⁰ His professional ideal, as described by Peter Novick, envisaged “the objective historian’s role” to that of “a neutral, or disinterested, judge; it must never degenerate into that of advocate or, even worse, propagandist. The historian’s conclusions are expected to display the standard judicial qualities of balance and evenhandedness. As with judiciary, these qualities are guarded by the insulation of the historical profession from social pressure or political influence, and by the individual historian avoiding partisanship or bias.”¹¹

Lawyers seemed to concur. The legal value of historical arguments was challenged by as persuasive an authority as Frederic William Maitland, whose inaugural lecture at Cambridge University in 1888 offered a warning against the temptation to “mix up two different logics, the logic of authority, and the logic of evidence. What the lawyer wants is authority and the newer the better; what the historian wants is evidence and the older the better.… A mixture of legal dogma and legal history is in general an unsatisfactory compound. I do not say that there are not judgments and textbooks which have achieved the difficult task of combining the results of deep historical research with a luminous and accurate exposition of existing law—neither confounding the dogma nor perverting the history; but the task is difficult.”¹² In the view of the founders, for historiography to become a science, it had to be based on the meticulous, chronologically distanced investigation of as many available sources as possible with the purpose of creating an objective account of past events. Lord Acton proclaimed in his famous 1895 inaugural speech “On the Study of History” that “history, to be above evasion or dispute, must stand on documents, not on opinions.” This was a path for historians to move from the biased role of hanging judge to becoming “an accepted tribunal, and the same for all.”¹³

The availability of sources and their impartial analysis was to be secured by a detachment created through the temporal remoteness between the researcher and the topic—the famed historical distance. This detachment was supposed to result in a shielding gap between historians and the legal and political concerns of contemporary society. The influential methodological textbook of Charles Langlois and Charles Seignobos echoed this idea: “It is an obsolete illusion to suppose that history supplies information of practical utility in the conduct of life.”¹⁴ However, the ink was still drying on their textbook as their recipe was to be tested in the most dramatic legal event that was shaking the French public and shaping its political and intellectual landscape—the Dreyfus affair.

THE DREYFUS AFFAIR: HISTORIANS AND THE PROTECTION OF HUMAN RIGHTS

Universally acknowledged as a major watershed in contemporary French history, the Dreyfus affair was launched in 1894 with the allegation that confidential information from the French military general staff was leaked to the German embassy. The affair took off as the finger of accusation was pointed toward Captain Alfred Dreyfus, a French artillery officer of Jewish origin. By the end of the year, he was arrested, tried for treason by a military tribunal, and sentenced to life imprisonment.¹⁵ However, such a prompt rendering of justice, surrounded by chauvinistic and anti-Semitic campaigning, raised suspicions of foul play. It became apparent that Dreyfus had not been convicted on solid evidence, that the trial had not been transparent, and that he had been scapegoated and even framed by the top echelons of the French military. Hence the reopening of his case became a rallying cry for a group of intellectuals assembled around the newly formed Ligue des droits de l’homme (Human Rights League), who pursued the case with g...

Table of contents

• Cover
• Series Page
• Title Page
• Copyright
• Contents
• Introduction: On History, Historians, and Transitional Justice
• Part I: The Complex Relationship Between Truth and Justice
• Part II: The Narrative of the Trial Record
• Part III: The Afterlife of Transitional Justice Processes
• Acknowledgments
• Notes on Contributors
• Index