Constructing Post-Conflict Justice

Stéphane Leman-Langlois
May 2000


1. Background for the thesis

To begin I would like to give an idea of the history behind this research.

1.1 Link to previous work and general interests

My master’s thesis was a comparison of prosecution and defence technique in the trials of Adolph Eichmann and Klaus Barbie. Both trials had the official and quite explicit objective of “educating” the nation, teaching citizens a number of valuable lessons about history, morality and identity.

In Jerusalem, the trial of Eichmann took the conventional adversarial form and split the personality of the defendant into a good twin, who was taken advantage of by the powers of the day and who got sucked into an unstoppable bureaucratic machine, and an evil twin who had more power than even Hitler over the organization of the massacre of Jews. Of course neither version conforms to official, academic, or document-based “history,” and it has become trite to criticize conventional trials for that. But it becomes obvious that the three aspects of the pedagogical mission, history, morality and identity, are actually competing, and what is best to achieve one may take away from another.

In Lyon, under an inquisitorial system, the split personality was that of the prosecuting state and not the accused. The prosecution presented what it called a balanced portrait of the accused, itself rejecting the less solid historical allegations and explicitly recognizing the power of the Nazi machine over its agents. Simply pushing this logic further, the defence strategy took the form of an indictment of what it said was a hypocritical state prosecuting an individual for crimes it itself routinely committed during colonial times and was still trying to cover-up by deflecting attention from it. It was, as Finkielkraut put it, “the perfect post-modern trial.” There were clashing, localized histories, which could be used to make the state normatively (and judicially) impotent.

At the same time, I was becoming increasingly interested in the construction of human rights (or more accurately, simply “rights” since empirically speaking this category should contain animal rights and any other “rights”) as a modern–and secular–moral horizon.

1.2 Literature on truth commissions

One site where both the question of human rights and official strategies for their protection meet has been so-called “truth commissions.” At the time that I was finishing my master’s degree, the South African Truth and Reconciliation Commission had been sitting for a few months and was only beginning to produce actual results.

At first I was both scientifically curious about its creation and philosophically encouraged by the existence of an alternative to retributive justice. The TRC has always presented itself as “restorative,” focussed on reconciliation, and capable of reaching an entirely new level of historical discovery, untainted by the mechanisms of law and the demands of criminal justice. Now my first reflex was to ask, “how does it do that?”

Most of the literature on truth commissions is supportive of this particular articulation of the problem, if not of the truth commission solution in itself. Most of it starts with the principle that human rights must be supported, defended or reinforced, and proceed to analyse various possible methodologies in their effectiveness to achieve those goals (they also have different ways and standards by which to measure this effectiveness). This is accompanied by a few corollaries: 1) that truth is an integral part of this goal, essentially for its claimed pedagogical power. 2) That peace must be the final result of any process. 3) That the state, through law, must be the engine behind the strategies.

To me, the more interesting literature–the minority–shows in one way or another that this arrangement of things is a particular one that comes from a particular place and time. Not simply that cultural differences cause different places to enact different laws; this is not very new. But that in effect the construction of not only the proposed solution but also the reality it responds to are contingent on the language used to describe them.

1.3 Methodology and field work in South Africa

Again, my first reflex question was, how does the TRC accomplish (or fails to accomplish) its goals? And I went to Cape Town to try to find out about that. After a week or two I had a meeting with Tony Doob, who was there on other business. He had had a look at what I was preparing to do–interviews, focus groups with participants, etc.–and basically told me, “but how will you know that that’s what the TRC is doing?” I’m not sure if that was quite what he meant, but I threw out my plans and started from scratch: I asked myself, “what is the TRC doing?”

Obviously it is engaged in a number of concrete activities: people visit, commissioners travel, articles are written, reports are produced; and there is no need to actually be there to know that. There are some very good papers on the specifics, and some detailed books written by insiders are now coming out. This makes available a very thorough picture of the history, the law, the practices and the realizations of the TRC and the people who worked in it. But that is not what I mean, and this thesis doesn’t add to this picture. I wanted to know what is involved in understanding what is being done.

So I proceeded to research how a generally accepted or dominant meaning was applied to each of the main elements of the TRC. I did not realize, at the time, how fleeting these meanings would be, or how a small nuance somewhere could lead to very significant repercussions on other aspects of the organization–and conversely how major controversies could end up having no effect at all. As I was gathering documents and talking to people, and filing the information under a thematic analytical system it became clear that there would be no point where I could say, there it is, “this is what the TRC means when it does this.” So I thought, “there it is, this is what the TRC is doing: it is constantly reinventing itself.” The activity I see around me only exists through its applied labels: it doesn’t mean or achieve anything in and of itself.

2. Summary of the findings

When I say that the Commission is constantly reinventing itself, I don’t mean that it is different with every new day. And I certainly don’t mean that it is ever “new” in the sense of “created from scratch.” It (and by “it” I mean, people who explicitly speak for it) tries to convince that it is new by organizing the elements of its world in a different way.

    2.1 The institution is continuously self-redefining

I drew a little on ethnomethodology to try to explain the function of this defining activity in terms of the necessity to “make things make sense” and to maintain “fit” between passing events, changing people, new truths, and the nature of the institution. I called this the production of “consistency,” made necessary and spontaneous by our everyday need to know what to do next in order to fulfil any of our goals.

Essentially, when the institutional narrative cannot be stretched enough to account for a new reality–say, the actual discourse of perpetrators–then it is the institution that gets recast. In that case, the TRC adjusted its language significantly and so what it did from then on was different in fundamental ways. After this research it is no longer possible to investigate how the TRC related to perpetrators without taking this transformation into account.

    2.2 The construction of the institution involves re-figuring its environment as well

The TRC project’s relationship with the victim-group it identified is an interesting example of the opposite: in this case the TRC was capable of integrating any resistance to its practical organization. Victims who entirely rejected the process presumably stayed home and were not heard from. The others who rejected the process during the proceedings could always be shown to do so through a level or form of participation: dissenting voices were heard through the TRC podium. This participation is what made it possible to group contesting victims with victims who accepted or praised the project. Briefly, the specifics of these multiple possible representations and definitions of the TRC-victim relationship were lost or glossed over by the institutional narrative of “victim-centeredness.”

Not that the Commission was capable of actually transforming the multiple TRC-incompatible discourses of the victims. One such discourse, heard in Argentina, Chile and South Africa, was “I’ll forgive him when he’s behind bars.” What the institutional activity managed to do, however, is to channel this dissonance and defuse its potential destructive power through its discourse of helping victims and restoring their dignity by hearing them speak the truth. And so through their participation, victims were unwittingly agreeing that speaking out loud and saying “I want him behind bars” (or whatever else) was going to be good enough.

    2.3 Understanding the past through institutional language

The TRC was given this flexibility and strength through a complex evolution of its concept driven by the drawing of relations with major myths and symbols about conflict, post­conflict society and how to stop the former from rippling into the latter. What is “post­conflict justice?” Post-conflict justice is a discourse that serves to set down a number of signposts on the social map of the nation–just like the “crime” discourse is. It is not what you do after a conflict, it is how you construct and communicate the idea that a conflict has ended.

“Justice” here was always about producing an identity for the political groups involved in creating the future. Who was wrong, who was right, why, when, in what intricate ways did one participate in determining the other’s actions, weren’t found in factual reality. On the contrary, what factual reality would be deemed important was determined through the negotiated result of these contests.

That politically motivated gross human rights violations would be the focus of the future TRC was not–and explicitly not–determined by the facts. The main argument in favour of a truth commission was that the facts were not yet known: there is nothing here to disguise the reality that the remedy is being applied before the disease is diagnosed, and TRC actors were always acutely aware of this problem. It is immediately visible that a number of prior political decisions determined the scope of the Commission. But I have shown that there was a lot more to the process than the arbitrary selection of a specific facet of apartheid: this selection had been made possible by a complete readjustment of the map, especially through the representation of apartheid as a politically motivated conflict.

Inevitably, such a project will isolate an arbitrary bit of reality; however the new understanding of the whole it also produces cannot be ignored–it has deep practical implications. Put differently, this new understanding is not only the result of a differential in the attention given to different slices of history: this particular organization of the discourse preceded the actual work of the TRC, it was not its result. It was what I call its “institutional language,” a very fluid, and never ending, symbolic negotiation with the institutional project as leitmotiv or formal theme. This discourse started the day that someone said, “let’s have a truth commission.” It is now slowly fading away as the country falls asleep on its past–in part because the institutional language has described the problems it created as solved.

3. Limits of this work and possible further research

In any research project some rather strict limits had to be imposed here. But I like to think these limits were constructive rather than problematic. I will list three, but I’m certain more could be identified.

    3.1 Ordinary actors have no voice: it is a top-down perspective

Because this is an analysis of dominant points of views and rationalities, competing discourses have been mostly ignored. There is passing reference to what individual victims, perpetrators or outside observers were doing and saying, but only as far as a comparative contrast was helpful in illustrating the functioning of the institution, and never as analytical material. This is unfortunate, as the effects of the project's language on its subjects would certainly be immensely interesting. I am in fact working on my next research project, which revolves precisely around this question: how far can language recast personal experience? At any rate, this first step, the unpacking of the construction of the language, is important in itself and the fact of the matter is that it was mostly influenced by those in power.

    3.2 This is not a description of the TRC or of South African politics

I think it is clear that the thesis only provides a rather shallow description of the very complex South African political life. What it offers is the bare minimum necessary to understand the mechanisms by which the project was constructed: it is not a description of each of the elements of the puzzle, but rather of the form they take inside the discussion and the type of effect that can be expected. The same goes for the Commission itself: as I have noted a few minutes ago, there are far better sources of information on the specifics of the Commission's activities.

    3.3 It offers no recipe for transitional justice

There are some policy implications but overall the type of knowledge generated by this project doesn't lend itself easily to normative arguments. I have found this somewhat disconcerting as I'm often left with very little to say when people ask me whether truth commissions are good things or not. Of course I have a personal opinion on the matter but it is rather difficult to mount an argument rooted in the analysis exposed here. What we see is astute humans at work creating a sensible social world in which a particular kind of rational action is made possible. It is a powerful, yet inherently imperfect process.