Transitional Justice Histories

Forthcoming in The Oxford Handbook on Transitional Justice.
Alex
Hinton, Lawrence Douglas and Jens Meierhenrich, eds., Oxford: Oxford
University Press.
Transitional Justice Histories

©Richard Ashby Wilson and Vladimir Petrović
I. Introduction
The future is certain. It is the past that is unpredictable.1
Mass political violence unsettles the past like no other comparable event.
The battle over its interpretation typically begins the moment the first shot is
fired and continues long after the final peace is signed. Transitional justice
institutions actively partake in that struggle and in the past several decades,
post-conflict criminal courts and commissions of inquiry are increasingly the
fora in which past atrocities are addressed.
The historical narratives produced by transitional justice institutions vary
widely in content and form. Some are minimalist, limited to basic fact-finding
and simply establish who did what to whom. Others are more ambitious and
delve into the origins and causes of the conflict, the social forces and
structural factors contributing to violence, and the involvement of
international actors. Despite their formal differences, all the historical
accounts presented at and by transitional justice institutions have one thing
in common - they inevitably broach the most sensitive and hazardous
historical issues in the conflict. The stakes are high: their conclusions can
facilitate the process of overcoming the historical legacy of a conflict and
fostering peaceful coexistence. Conversely, they may also represent a lost
opportunity, or worse, actively forestall open public debate about the past.
The competing historical accounts in transitional justice institutions have
only become a topic of academic scrutiny fairly recently (Adler 2018;
Douglas 2001, 2016; Osiel 1997; Petrović 2017; Simpson 1997; Teitel 2001;
Wilson 2001, 54-61), and a number of questions have emerged in this
literature, such as; how should we understand the conditions of the
1
A comment attributed variously to South African comedian Pieter Dirk-Uys, and a
popular joke that circulated in the former Soviet Union. See “The past is unpredictable: race,
redress and remembrance in the South African Constitution.” Inaugural Lecture of Pierre de
Vos, 14 September 2011, University of Cape Town. Available at:
https://www.uct.ac.za/downloads/uct.ac.za/news/lectures/inaugurals/De_Vos_inaugural.pdf
Electronic copy available at: https://ssrn.com/abstract=3914435

2 Transitional Histories
production, consumption and impact of transitional histories, and why are

some considered a success, whereas others are seen as a failure? This chapter
examines the historical accounts of mass atrocities produced by an array of
transitional justice institutions, and this exercise requires making explicit our
criteria for evaluating the breadth and quality of various histories of
transitional justice institutions. Stated plainly, some historical accounts are
more plausible than others, on the grounds of the consistency and coherence
of their narrative, and the evidential basis for the historical claims they make.2
Our review of the historical accounts of transitional justice institutions
adopts several axes of comparison and inquiry. First, we contrast legal and
quasi-legal institutions and evaluate the assertion that because truth
commissions are released from the criminal justice mandate of judging guilt
or innocence, they are more able to address the broader origins and causes of
the conflict. We find to the contrary: truth and reconciliation commissions do
not in themselves represent an improvement on courts with respect to the
historical accounts they produce. This justifies evaluating criminal courts and
truth commissions in the same analysis and according to the same criteria,
not separately as often occurs in the bifurcated transitional justice literature.
Next, we compare the histories produced by international institutions to
those of domestic institutions, paying particular attention to the position and
role of the nation-state. International transitional justice institutions, by virtue
of their temporary status, specific functions and constitution outside the
formal state apparatus, are less prone to nationalist distortions, and more open
to the voices of all those implicated in, and affected by, mass violations of
international law. International transitional justice institutions also have more
capacious rules of evidence than domestic and common law courts, allowing
them to admit into the trial a wider range of relevant material, from video
footage to the scholarship of experts. However, being constituted
internationally is not in itself sufficient to ensure that a transitional justice
institution produces a wide ranging, accurate and comprehensive historical
account.
Lastly, we underscore how the process of writing history can be just as
vital as the final outcome. In their investigations, courts and commissions
often gain access to vast archives of secret government agencies, revealing
the inner workings of a political and security apparatus and providing access
to primary documents that will keep historians busy for decades. Trials and
2
We understand narrative to imply an ordering of individual elements into a
chronological account which makes (more or less) causal claims about the relationship
between the elements. Dworkin (1977) identified how legal arguments routinely present facts
in a chronological form, and how narrative coherence is essential to the parties’ success in
the courtroom. “History” implies a broader, and usually officially sanctioned, account that
incorporates one or more such sub-narratives about the past.

Wilson & Petrović 3
public inquiries frequently galvanize public opinion and generate social

movements that promote accountability, legal remedy and a more accurate
view of the past than is present in official discourse. Recognizing the
importance of the contingent and contested process of history-writing moves
us away from a metaphysics that posits law on one side and history on the
other, to an actor-centered and empirical approach that focuses on the context
of the transition from conflict, and the strategies of political and legal actors
that seek to achieve certain identifiable goals through writing history.
II. The Debate: The Legalization of History
Transitional justice as a field is premised on a critique of the capacity of

standard nation-state justice institutions to adequately address mass
atrocities. This critique extends to the ability of these institutions to write an
satisfactory account of the origins and causes of political violence. Two broad
schools of thought assert that that courts are inappropriate venues to delineate
the origins and causes of mass crimes (Wilson 2011, 6-11.). Firstly, liberal
legalists maintain that the justice system should not attempt to write history
at all, lest it sacrifice high standards of judicial procedure. Secondly, law and
society scholars observe that even when courts attempt historical inquiry,
they are bound to fail due to the inherent incompatibility between the methods
of law and history.
For liberal legalists, the sole function of a criminal trial is to determine
whether the alleged crimes occurred and if so, whether the defendant can be
held criminally responsible for them. One of the most influential modern
figures here is Hannah Arendt (1965:5), who insisted in Eichmann in
Jerusalem: a report on the banality of evil that the main function of a criminal
court is to administer justice, understood as determining the guilt or
innocence of an individual. Arendt noted the prominent role of history at
Israel’s 1961 domestic trial of Nazi bureaucrat Adolf Eichmann, “It was
history that, as far as the prosecution was concerned, stood in the center of
the trial.” In her view, this was a fatal error since the quality of historical
discussion at the trial was characterized by “bad history and cheap rhetoric”
(Arendt 1963). Arendt fulsomely denounced Prosecutor Gideon Hausner’s
forays into remote history, “It is not an individual that is in the dock at this
historic trial, and not the Nazi regime alone, but Anti-Semitism through
history” (Arendt, 1965, 19). Arendt held felt that a court should not attempt
to answer the broader questions about why a conflict occurred between
certain peoples in a particular place and time, nor should it pass judgment on
competing historical interpretations.3
3
“Justice demands that the accused be prosecuted, defended and judged” wrote
Arendt, “and that all other questions of seemingly greater import-of “How could it

While liberal legalism has its supporters in the academy, and especially
in law schools, a preponderance of humanities and social science scholars to
develop their own version of what we call “incompatibility thesis” that
emphasizes the distinct modus operandi of history and law.4. Law’s unique
conventions, special categories and exceptional rules impel courts to perceive
historical events through a counter-intuitive prism, leading to all manner of
unintended consequences and untenable outcomes. As a concrete example, a
number of historians maintain that the International Military Tribunal did not
adequately address the most important Nazi crime of all - the mass
extermination of European Jews.5 The trials left an incomplete and
impoverished historical record because crimes against humanity were
subordinated to crimes against peace and conspiracy to wage an aggressive
war. The strategy adopted by Nuremberg prosecutors was motivated by a
specifically legal rationale related to the 1945 Nuremburg Charter that
required that crimes against humanity be committed in the “execution of or
in connection with any crime within the jurisdiction of the Tribunal.” This
meant that to fulfill the elements of crimes against humanity, prosecutors had
to demonstrate that they were committed in furtherance of a war aim.
Consequently, the Tribunal paid more attention to the German war of
aggression than the systematic program to eradicate European Jews. Hence,
many historians concluded that the Nuremberg trials did not present an
authoritative historical account of the Holocaust and may even have distorted
the record for future generations.6
As a result, many historians are wary of becoming embroiled in atrocity
trials. Henry Rousso, then Director of the Institute for Contemporary History
in Paris, pleaded with the president of the Bordeaux Assizes Court to exempt
him from testifying as an expert witness in the 1997 trial of Vichy era police
chief Maurice Papon: “In my soul and conscience, I believe that an historian
cannot serve as a “witness”, and that his expertise is poorly suited to the rules
and objectives of a judicial proceedings…The discourse and argumentation
of the trial…are certainly not of the same nature as those of the university.”7
Even historians who have testified successfully in trials express dismay with
their experience. Richard Evans, (2002:330) who testified as an expert
happen?” and “Why did it happen?”, of “Why the Jews?” and “Why the
Germans?”[...]be left in abeyance” (p.5).
4
See Osiel (2000) and Minow (1998). See Borneman (1997: 103) on the conflicting
aims of historians and the justice system.
5
See Bloxham (2001), Friedlander (1992) and Marrus (1997) on the limitations of
Nuremburg.
6
Donald Bloxham (2001) argues that the Holocaust was largely absent in the Nuremberg
trials. For a defense of the Nuremberg trials’ historical contribution, see Douglas (2001: 65-
94).
7
See Letter to the President of the Bordeaux Assizes Court, in Golsan (2000a:194).

witness for Deborah Lipstadt’s defense in the 2000 British libel trial brought
by Holocaust denier David Irving, complained, “For the historian, it can be
disconcerting to see carefully researched historical material ripped out of its
context by clever lawyers and used as a bludgeon to beat the other side.” He
identifies irreconcilable incompatibilities between legal and historical
approaches to evidence: while law’s standards of proof are “beyond
reasonable doubt”, historians deal in “the broader frame of probabilities.” 8
Court expert witnesses are often subjected to hostile cross-examination,
whereas historical analysis proceeds through academic discussion and peer
review. Law’s epistemology is positivist and realist, demanding definite and
verifiable evidence produced through forensic methods. History, on the other
hand, is more pluralistic and interpretative in both its methods and
conclusions. Transitional justice institutions may endorse one version of
unfolding of events above all others, whereas historians may integrate the
elements of competing accounts. Historians often recognize that historical
truths are provisional. Their evidence and conclusions are not always free of
ambiguity and could rest on the evidence which would be deemed a hearsay
in the court. Historians situate individual acts within the societal and cultural
contexts as a matter of course, whereas courts or commissions of inquiry are
only concerned with context insofar as it impinges on questions of guilt or
innocence. Establishing criminal responsibility is entirely alien to what
historians do. Transitional justice institutions demand the kind of
corroborated facts that will allow them to name responsible individual in their
reports, or, in the case of courts, convict the accused. Historians, on the other
hand, are absolved from such imperatives and can afford to be more open to
indeterminacy and a more systemic approach to causality and responsibility.
Both Arendt’s liberal legalism and the “incompatibility thesis” have
much to commend them, and their critique of standard justice institutions
(especially criminal trials) is persuasive and compelling. Yet another
intellectual tradition identifies the ways in which transitional justice
institutions may transcend the divide between law and history. Judith Shklar
was one of the first to defend post-conflict legal narratives, contending
forcefully that there are “occasions when political trials may actually serve
liberal ends, where they promote legalistic values in such a way as to
contribute to constitutional politics and to a decent legal system” (Shklar,
1964, 145). She recognized that in Nuremberg and Tokyo tribunals “history
had to be tortured throughout in order to reduce the events to proportion
similar to those of a model criminal trial within a municipal system” (147).
Yet she had no doubt that “their main value lies in the historical facts about
8
Richard Evans, a historian at Cambridge University, served as expert witness for
Deborah Lipstadt’s defense in the 2000 British libel trial brought by Holocaust denier David
Irving.

Nazi government they brought to light,” (156). Among historians, even more
generous was Michael Marrus, who concluded that Nuremberg “at its best
moments, set an example for a kind of historical judgment — impartial, but
not necessarily dispassionate; fair-minded, but not without moral compass;
searching in quest of truth, while recognizing the formal limitations that
attend to the endeavor in an adversarial proceeding.” (1998, 6).
In more recent reappraisals of the Eichmann trial, there is a growing
consensus that Arendt’s reservations rested on “needlessly restrictive vision
of the trial as legal form” (Douglas 2001, 27), Arendt’s palpable disdain for
the Israeli court rendered her oblivious to the positive aspects of the
Eichmann trial (Burdon 2018, Cesarini 2005, Douglas 2001, Yablonka 2004).
The inclusion of victims’ testimonies and other innovative elements,
according to Rosenbaum, transformed this trial into “an enormously positive
landmark in the history of human rights enforcement and of the effort to seek
accountability on behalf of the victims of genocide” (2012, 387). Certainly,
one could not foresee how Eichmann trial would eventually galvanize West
German public opinion and contribute to a vigorous campaign of domestic
prosecutions of Nazi crimes (Petrović 2017, 220). In the hands of
prosecutorial activists like Fritz Bauer, some of those proceedings functioned
both to punish Nazi criminality and to send a wider societal message
(Petrović, 2018). The lessons of the Eichmann trial reverberated in the 1963-
65 Frankfurt trials of twenty-two Auschwitz camp personnel and the
subsequent response of West German society to the Holocaust.
Historians appearing as expert witnesses in the Frankfurt trial came to
play a crucial role in raising public awareness in West Germany about aspects
of the Holocaust that were not fully examined in previous prosecutions of
Nazi criminals (Pendas, 2006). In time, German historians and criminal
courts developed a model of cooperation which “did not undermine the
credibility of judges and historians. Both observed the rules and discourse of
their respective professions and neither blurred the distinction between
justice legally applied and truth historically defined” (Haberer, 510). This
narrative, as well as the prosecution of Nazi war criminals was embedded in
a wider comprehensive memory politics, which included media discourse,
the writing of school textbooks and curricula, and museums and
commemorations. Although the German example is exceptional, it
demonstrates that when a state and society broadly endorse a program of
accountability and historical inquiry, and where international justice
institutions have already adjudicated some of the most criminally responsible
actors, then national institutions using conventional criminal categories can
furnish both adequate law and history.
Therefore, there is a compelling case for rethinking the long-standing
view that the pursuit of accountability and the writing of history are

inherently irreconcilable. Historical debate has become an inescapable

feature of many transitional justice institutions, for better or worse.
Contextual discussions surface at particular moments, for instance in trials of
political leaders who espoused a radical ethno-nationalist ideology that
makes extensive historical claims. Commissioners in a public inquiry and
judges at a criminal court must routinely pronounce upon questions of
historical import and choose between competing historical explanations.
Why is historical discussion inevitable, leaving aside the question of whether
it is desirable? Our answer is because it is legally relevant. Contra Arendt,
historical discussions are rooted in the investigative (and, in the case of
criminal trials, adjudicative) process of transitional justice institutions and
may be invoked by either the prosecution or defense to construct an
inculpatory or exculpatory argument with respect to the intentionality of the
perpetrators (Wilson 2011:22).
As such, historical evidence can be highly pertinent to the eventual
judgment or report of a transitional justice institution. History does not
feature because the opposing parties are committed to the pursuit of historical
commentary as an end in itself. Instead, contextual evidence can help the
political actors build their case to justify their own acts and denounce those
of their opponents (Simpson 1997). Thus, it is not a matter of whether the
parties produce an historical narrative, but how, to what extent, and using
which methods, with what motivations, guiding principles and assumptions
and with what consequences for the outcome of the legal or quasi-legal
process.
Returning to the terms of the debate, we see that law and history are not
two disconnected logics, clashing with one another. Overstressing the
divergence between legal and historical ways of knowing forestalls a more
complete awareness of how they are effectively combined in truth
commission reports or trial judgments. Since history has immediate legal
relevance for the parties to the conflict, then the empirical question is how
exactly do judges and commissioners handle historical evidence? Here, we
recommend a closely-detailed study of the strategies, understandings and
intentions of the actors in transitional justice institutions which are complex
social institutions made up of actors with a variety of goals and assumptions.
Courts and commissions are not merely abstract entities but complex social
processes, and this compels transitional justice scholars to pay more attention
to how social actors argue about the past - what their motivations are and
what they hope to achieve by turning to history. Historical evidence is seldom
merely rhetorical window dressing. Instead, it is often an integral element of
the post-conflict political and legal landscape. We advocate a greater concern
with experience rather than logic, to use Justice Holmes’ famous distinction,
and attention to processes and practices rather than a fixation on the

immediate outcome.
III. Truth and Reconciliation Commissions
The critique of national criminal justice institutions’ capacity to write

history became prevalent in legal and historical scholarship of the 1990s. This
was part of the rationale for the creation of new quasi-legal bodies such as
“truth commissions” to investigate and write an official account of the past
crimes of an authoritarian regime.9 The first and perhaps most influential
truth commissions emerged in Latin America in the 1980s as a response to
amnesty laws that extinguished the criminal liability of perpetrators and
heightened the need for some kind of non-retributive, but nonetheless
reliable, account of past crimes. Are transitional historical narratives
produced by non-criminal justice commissions of inquiry better equipped to
overcome political and legal obstacles at the national level? The answer has
varied over time, from initial exaltation (Minow 1998; Mertus 2000:157;
Boraine 2001) to a more comparative and critical analysis (Wilson 2001;
Hayner 2011, Scheuzger 2018).
The initial efforts of truth commissions were applauded by transitional
justice advocates who favored their move away from the retributive model of
standard criminal justice. Commissions of inquiry established outside the
framework of the justice system, they claimed, represent a vast improvement
on courts because commissions are released from the task of determining
individual guilt or innocence and therefore can conduct a contextual and
open-ended historical inquiry and analysis. Courts, Minow (1998) argued, are
overly concerned with the individual actions of the accused and permit the
testimony of only a few victims, who are often subjected to hostile cross-
examination. Truth commissions, on the other hand, can provide a platform
to listen compassionately to the voices of victims, a process that not only
restores their dignity, but also elicits a broader set of truths about an era of
political violence. The emergence of a scholarly constituency advocating for
truth and reconciliation commissions coincided with transformations in the
discipline of history that made it more diverse and inclusive. Gone were the
days of official nationalist histories that simply tell the story of elites and
powerful (usually male) actors. Voices of the marginalized and members of
historically disadvantaged groups are now considered an essential part of any
account of an era of mass crimes, especially because the majority of victims
of international armed conflicts or internal civil wars are women and
members of religious, racial and ethnic minorities.
9
Truth commissions are generally not established within the framework of the justice
system and yet they may hold hearings where they hear evidence, cross-examine witnesses
and possess legal powers such as the authority to grant amnesty; hence they are “quasi-legal.”

The promise of truth commissions notwithstanding, the actual historical

output has been sobering. The majority of truth commission reports are not
models of wide-ranging historical inquiry and provide only schematic
accounts of the political causes of an armed conflict. The nationally-
constituted South African Truth and Reconciliation Commission (TRC) was
widely applauded by international scholars and human rights non-
governmental organizations, and it did perform a number of functions
admirably (Boraine 2001, Buur 2001, Posel and Simpson 2003 and Wilson
2001). The Commission’s public and televised hearings brought the voices
of ordinary Africans into the mainstream public space in a way that was
unprecedented in South Africa’s history. After the TRC hearings, it was
apparent to all that apartheid was a vicious system of institutionalized racism
that destroyed millions of human lives, through violence and through
structural neglect.
While the public testimonial process itself had a significant impact upon
public opinion, the final TRC Report released in 1998 was a shambolic
document comprised of 3,500 jumbled, barely edited pages with no coherent
chronology and no index (2001:33-79). It contained basic and embarrassing
mistakes of fact regarding some of the most well-known historical incidents
of the apartheid era. For instance, it gave the wrong date of the Boipatong
massacre and provided an inconsistent number for the number of victims
murdered in that attack [TRC Report, Vol. 3 chap 6, at 598.].
Perhaps more significant was the TRC’s evasion of the larger historical
questions about the nature of the apartheid system and its relationship to
violence. The TRC report need not have settled these complex issues, but it
ought to have broached them, since a central stated rationale for truth
commissions is that they can address the historical questions that criminal
courts must eschew in their focus on individual criminal responsibility. In the
end, the South African TRC did not leave behind a well-constructed report
that offered new insights into apartheid-era violence. In fact, the criminal
prosecution of apartheid security policemen such as Colonial Eugene De
Kock arguably produced more new and substantial information on the day-to
day functioning, if not the entire chain of command of the apartheid state
security apparatus. In this respect, there is a very wide disjuncture between
how international scholars and practitioners and South Africans of various
political dispositions perceive the Commission’s legacy.
The South African case casts doubt upon the often-stated view that truth
commissions inevitably represent a marked improvement upon domestic
criminal trials with respect to the histories they write. Instead, some
commissions and courts produce meager and impoverished accounts,
whereas others write complex and detailed histories of the origins of conflict.
Granted, truth commissions are more centrally concerned with producing an

historically accurate account of past mass violations, and courts are more
directed towards determining guilt or innocence and punishing individual
offenders. Yet beyond this, a number of different outcomes are possible, and
these do not always depend on whether the institution is a commission or
court.
There is a plausible explanation for this state of affairs, and it relates to
how the state is often in a structural situation of a conflict of interest with a
domestic court or truth commission. In transitional justice contexts, the state
is being asked to judge itself, and make itself vulnerable to law suits and
demands for reparations from the victims of government agents. Granting
reparations to all victims of state-sponsored violence is something that post-
authoritarian states, often facing massive social pressures and resource
constraints, seek to evade. For instance, in South Africa in 1997, different
state institutions pursued decidedly contradictory objectives. In the African
township of Sebokeng south of Johannesburg, the TRC held public hearings
where Commissioners listened sympathetically to the voices of the many
victims of the South African Police. Meanwhile, just a few kilometers down
the road at the Vanderbijlpark Murder and Robbery Unit, police officers
continued to torture and assault criminal suspects to extract confessions.
While one branch of the South African state held a forum to hear victims’
stories of police violence, another agency generated yet more victims of
torture and maltreatment. And, crucially, in 1997 the Minister of Safety and
Security was being sued successfully for damages. The inherent conflict of
interest this implies means that the post-conflict state can seldom act as a
neutral arbiter since it is too embedded in, and financially liable for, a violent
scenario of its own (and often continued) making. Both truth commissions
and domestic trials are caught up in the state’s material conflicts of interest
and the imperative to manufacture legitimacy to control internal dissent and
project itself in a positive light internationally. This explains in part why
national truth commissions have not always represented a radical
improvement on criminal trials.
Despite these shortcomings, the South African TRC has been held up as
a paradigmatic model for all subsequent truth commissions and during the
late 1990s and early 2000s, the United Nations and donor governments
adopted official policies stating that the task of writing a new official history
of a period of authoritarianism and violent conflict was central to co-
existence and accountability, and they promoted truth and reconciliation
commissions to fulfill this undertaking. (UK Parliamentary…. ; UNSC 2004,
paragraph 47, p. 16). And, in fairness, there have been some comprehensive
and well-crafted truth commission reports that transcend the narrowness of
national criminal procedure. Perhaps the most impressive report qua
historical document is the 1999 report of the UN-sponsored Guatemalan

Commission for Historical Clarification (Comisión Para el Esclarecimiento

Histórico) (Grandin 2000, 2005, Hayner 2001, Sanford 2003 and Sieder
2001). Guatemala, Memoria del Silencio is a damning account of state terror
over three decades that found that 200,000 people had been killed or
“disappeared”, and that 83% of the victims were Mayan Indians (Guatemala,
17). Although the report’s authors were prevented from naming individual
perpetrators, it found that Guatemalan military committed 93% of the
violations and the guerrillas 3% (28). The Guatemalan Commission became
the first truth commission to level an accusation of genocide against a
previous regime: “agents of the State of Guatemala, within the framework of
counterinsurgency operations carried out by the regime of General Ríos
Montt between 1981 and 1983, committed acts of genocide against groups of
Mayan people.” (CEH, 5:51, at 122) Mass violations had occurred “by the
order of the highest authorities of the State. (vol. 5, p.38).”
The use of the term genocide compelled the commission to go beyond
simply documenting individual violations to examine structural factors, and
the report identifies three inter-dependent causes of violence: economic
exclusion, political authoritarianism and racism. It documents the
institutionalized system of racism in the country at all levels-economic,
political, cultural, and educational. After unexpectedly gaining access to the
U.S. National Security Archives, it also documents the role of the United
States in arming and training the Guatemalan military that committed mass
atrocities.
Despite the fact that it did not have an immediately profound impact upon
political debate in Guatemala, it presented original documentation, trenchant
social science analysis of the country’s political, economic and social
institutions, and included victim’s narratives told in their own voices. Further,
the Guatemalan commission’s findings contributed materially to the 2013
conviction in a national criminal trial of General Ríos Montt for the crimes
of genocide and crimes against humanity. This trial represented the first time
a former head of state was tried for genocide in a domestic criminal court, a
process that was facilitated by the findings of the prior truth commission.
While the Guatemalan truth commission was largely internationally
funded and staffed, the Peruvian Truth and Reconciliation Commission was
primarily a national project, although with significant international funding
and participation, and it too produced a comprehensive and well-crafted
historical document of mass violence. (Comisión de La Verdad y
Reconciliación-Peru; Laplante and Theidon 2007 and Theidon 2013). As
with the South African Truth and Reconciliation Commission, a significant
segment (approximately 45%) of the overall budget came from foreign
governments, with USAID being the main international donor. Peru counted
with international personnel and assistance and expertise from international

non-governmental organizations such as the International Center for

Transitional Justice, as well as consultants from other Latin American truth
commissions.
Commission investigators interviewed 15,220 individuals, carried out
meticulous investigations over two years and the Commission found that
69,000 people had died in political violence between 1980 and 2000. The
Commission’s 2003 Report situated the individual violations within a wider
context of socio-economic inequality, racism against indigenous groups,
educational disparities and entrenched divisions between the distinct
geographical zones of the country. The Peruvian Commission’s Report
thoroughly examined the role of social institutions, including the universities,
human rights organizations, Catholic Church, media, political parties as well
as the military and criminal justice system.
Many factors explain the Peruvian Commission’s relative success,
including the degree to which the architects of the Commission learned from
previous experiences, but one crucial variable was the unusual level of
responsibility of a non-state actor for the human rights violations. The
Peruvian Commission surprised even the most seasoned observers when it
revealed that the Shining Path guerrillas had committed more atrocities than
government forces and were responsible for over half of all the killings. Peru
was one of the very few countries, and indeed the only one in Latin America,
where the state was not the main perpetrator of human rights violations. This
meant that the nation-state sponsoring the truth commission did not find itself
in a conflict of interest to the same degree as in Argentina, Chile, El Salvador
or South Africa and was less encumbered by state interference in its history-
writing mission. Additionally, in Peru, there were many dynamic local human
rights organizations that pressured the government commission to do its job
thoroughly. They engaged in their own historical documentation and forensic
work and thereby facilitated the official process of comprehensive fact-
finding. This civil society participation can be a crucial factor in augmenting
the investigative capacity of a truth commission.
In sum, we need to refine the terms of the debate further if we are going
to make sense of the record of truth commissions and courts. First, the type
of institution (whether criminal court or commission of inquiry) seems to
matter less than the categories of crimes that guide the investigation, and we
see broader and richer historical narratives when a transitional justice
institution views the last through the lens of collective crimes such as
genocide or persecution, a crime against humanity which requires intent to
discriminate collectively against a group (Aksenova 2017). Truth
commissions and courts employing collective legal categories such as
genocide tend to write more contextually rich and complex histories of armed
conflicts than those which adhere to conventional criminal law categories of

individual criminal responsibility. Additionally, the historical account an

institution produces is in part dependent on the bureaucracy that the
institution is embedded within, and national truth commissions and criminal
courts are often more heavily constrained by domestic states, which often
experience an acute material conflict of interest, than by an international
bureaucracy such as the United Nations. Historically the purpose of national
commissions of inquiry has been to obediently solidify dominant national
narratives, such as the interwar German Parliament´s “Commission for
Research on the Question of Responsibility for the World War,” which
attempted, with considerable national popular support, to undermine the
historical narrative provided by the 1919 Versailles Treaty (Heinemann,
1983).
Thus far, truth commissions have had a mixed record, and the vaunted
promises of their advocates have not been entirely fulfilled. Some, such as
the South African Truth and Reconciliation Commission (TRC), have
produced unsatisfactory reports that misrepresent the basic facts and do not
even attempt to reflect on the larger historical frame of the conflict. Others,
such as the reports of commissions in Guatemala and Peru, have contained
impressive accounts of an era of violence, documenting not only the historical
trajectory that triggered violence, but also the role of international actors such
at the United States. Still others are a mixed bag, as in Argentina where the
truth commission report was a popular sensation that documented the military
junta’s human rights violations in scrupulous detail but treated the junta and
the political opposition as morally equivalent (Barahona de Brito 2001,
Grandin 2005 and Panizza 1995).
It seems to matter less whether the justice institution producing the
historical record is a truth commission or a court, but whether the institution
enjoys relative autonomy from the local nation-state, whether the main
perpetrators of crimes were non-state actors or state officials, and whether the
institution is investigating the crimes through the lens of international human
rights and the categories of crimes against humanity and genocide. And
finally, and possibly most decisively, there is the political balance of power
at the time of writing. The transitional justice literature has framed the tension
between courts and commissions primarily as a choice between justice and
truth, but this neglects the simple fact that as long as the political discord and
massive social and economic inequalities that fuel mass violence remain
unresolved, any transitional justice institution will face significant obstacles
to realizing its historical or justice mandates. The narratives produced by
transitional justice institutions can help to foster a national consensus on the
past, but they cannot be expected to forge unanimity single-handedly in the
absence of a wider national project.

IV. Post-Cold War International Criminal Tribunals
The sudden and seemingly bloodless conclusion to the Cold War in 1989
opened a short window of international cooperation that lasted until
September 11, 2001. In the 1990s, transitional justice emerged as a coherent
field that offered successor regimes a wide array of institutional mechanisms
aimed at addressing the legacy of mass crimes (Kritz 1995; Borneman 1997;
McAdams 1997). Up until 1993, the range of possible transitional justice
institutions writing historical accounts was limited to national criminal justice
institutions, national truth commissions, or international truth commissions.
As a response to the ethno-nationalist conflagrations in the Balkans (1991-
1995) and Rwanda (1994), a new model arose that had not been seen since
Nuremberg: internationally constituted criminal tribunals applying
international criminal law. International law is a hybrid system that
amalgamates Anglo-American adversarial law and the civil-law system
found in much of continental Europe, Latin America, Francophone Africa
and Asia. International criminal law borrows from these pre-existing systems,
and also generates its own rules and procedures and legal precedents,
bringing into being a unique legal system that must be taken seriously in its
own right. It also has been characterized by an approach to history that is
more capacious than that which is commonly found in national criminal
jurisdictions.
What did this explosion of transitional justice theory and practice mean
for narratives about the past? Some scholars offered Durkheimian
formulations that emphasized social solidarity, ritual and the recreation of
social norms. Mark Osiel considered that “law-related activities of this sort
contribute to the kind of social solidarity that is enhanced by shared historical
memory” (1999).10 Lawrence Douglas (2016, 6-7) observes how prosecutors
portrayed the Nuremberg trials, the Eichmann trial and the French Holocaust
trials as didactic exercises that taught history as much as they pursued
accountability.
A laboratory to test those views appeared in the renaissance of
international criminal prosecutions and the creation of two ad hoc judicial
institutions-the International Criminal Tribunal for the former Yugoslavia
(ICTY, 1993) and the International Criminal Tribunal for Rwanda (ICTR,
1994). Mandated with prosecuting perpetrators of the gravest international
crimes, these tribunals delivered an unexpectedly high level of
accountability– the ICTY indicted 161 persons and sentenced 90 in The
10
See also (Teitel 2000, 116) on trials and public hearings as legal rituals.

Hague (Steinberg 2011). Meanwhile in Arusha, the ICTR indicted 93 persons

and sentenced 62 (Cruvellier 2010). Both courts were active for over two
decades, during which time other temporary judicial institutions were
created, including “hybrid” national-international courts such as the Special
Court for Sierra Leone in 2002 (Jalloh 2014) and the Extraordinary Chambers
in the Court of Cambodia in 2003 (Hinton 2016, Meisenberg 2016), followed
by similar undertakes in East Timor, Iraq, Lebanon, Kosovo, Bosnia, Chad
and the Central African Republic.
Each of these courts have a unique institutional structure and story of their
own, a fact that precludes simple generalizations. Yet, for the most part,
although not officially tasked with the creation of transitional historical
narratives, these institutions departed from the standard criminal law position
that historical accounts are simply byproducts of the trial. In the first ICTY
trial (Tadić), the prosecution and defense called historians as their first
witnesses, in order to set the scene for the review of the crimes to follow in
the trial (Wilson, 2001:74-5). The Trial Chamber’s judgement integrated the
experts’ testimony and began with a remarkable sixty-nine pages of extended
Balkan history that identified the region as a shifting frontier between
competing empires and reviewed the competing projects of the unification of
South Slavs, the establishment of interwar Yugoslavia and then its
destruction in the mass atrocities of the Second World War.
Despite this bitter legacy, relations among Croats, Muslims, and Serbs
were relatively harmonious in the postwar period (§64). No ethnic atrocities
were documented between 1945 and 1990, although this was in part due to
the suppression of nationalism and religion by Tito’s socialist regime. A
nationalist resurgence began in 1974, as a new Yugoslav constitution
devolved powers to the governments of the republics (§68). In 1980,
President Tito died, and the 1980s economic crisis generated more appeal for
nationalist policies (§70–1). As in Guatemala, a first-rate historical account
does not necessarily translate into popular approval, and the population in the
former Yugoslavia largely ignored the judgement except where it suited their
nationalist predisposition. This can be attributed to the ICTY’s limited
outreach work in the region, as well as to the powerful residues of wartime
propaganda in the successor states to the former-Yugoslavia.
The ICTY’s inclination to write history surfaced in subsequent trials,
especially in those where the accused was a high-ranking political or military
leader. In such trials, the prosecution often commended its case by calling an
historian as expert witness who would frame the historical context in which
crimes were committed. Historical explanations can also be germane to key
elements of the crimes themselves. For instance, international criminal law
requires that crimes against humanity be “widespread or systematic”, and this
determination implies a close examination of the historical and social context

of the crimes. In the Balkans, individual Croats committed extensive crimes

against Serbs in the parts of Croatia that bordered Bosnia, and against Serbs
and Muslims in Bosnia itself. To fully grasp the import of these events, the
panel of three ICTY judges required an historical account of how Croatian
nationalists viewed minorities in Croatia, and how some radical nationalists
claimed sections of Bosnia as part of “Greater Croatia.” In the trial of Bosnian
Croat leader Jadranko Prlić, the indictment alleged that the crimes were
motivated at least in part by long-standing nationalist aspirations, insofar as
“The territorial ambition of the joint criminal enterprise was to establish a
Croatian territory with the borders of the Croatian Banovina, a territorial
entity that existed from 1939-1941.”11 For their part, defense teams used
history in the service of a capacity defense (or “chaos” defense) that
recounted extensive popular participation in inter-communal violence and
claimed there was an adamantine Balkans culture of revenge. Defense
lawyers also sought to mitigate any sentence by chronicling hundreds of years
of massacres and violence against the particular national group of the
accused.
Historical commentary in the ICTY courtroom reached its zenith in the
trial of former Yugoslav and Serbian President Slobodan Milošević. Opening
the prosecution case against Milošević, ICTY Chief Prosecutor Carla Del
Ponte declared that, “this trial will make history, and we would do well to
approach our task in the light of history.” To that end, prosecution tendered
930 exhibits on 85,526 pages, plus 117 video records, and produced 352
witnesses whereas Milošević submitted 9,000 pages of exhibits including 50
videos and brought 40 witnesses (Petrović 2015, 301). The prosecution
mounted a monumental historical narrative in the trial of Slobodan Milošević
in order to bolster its claim that the defendant possessed the special intent to
commit genocide. His intent emanated from a long-standing animus nurtured
within “the Serb nationalist mind-set” since the nineteenth century. The trial
dragged on for nearly five years from June 2001 until the accused’s death in
the ICTY’s detention unit in March 2006. The Milošević trial left behind a
massive transcript of 46,639 pages, but no judgment. However, the abundant
secondary literature on the Milošević trial suggests that even the failure to
obtain a final judgment can enable rich debates over the historical importance
of a trial and this reinforces our claim that the process can be as important as
the final judicial outcome (Boas 2007; Armatta 2010; Waters 2013; Tromp
2016).
Del Ponte, who was also a Chief Prosecutor of the ICTR, was both more
cautious and fortunate in the prominent trial of Colonel Théoneste Bagosora
and his three Rwandan military associates. At its opening in 2002, she said
11
The Prosecutor v. Jadranko Prlić et al. Case IT-04-74-T, Second Amended
Indictment, 11 June 2008, §15.

that “the tribunal can never write the whole history of the Rwandan tragedy
of 1994, in particular the Rwandan genocide, its genesis and it realisation”
(UNICTR, Bagosora, Nsengiyumva, Kabiligi & Ntabakuze Transcript (2
April 2002), p. 146.) Even so, the sheer volume of evidence surpassed any
other ICTR case, with nearly 1,600 exhibits and 242 witnesses in a trial that
lasted for 409 trial days, generating over 30,000 pages of transcript.
(Bouwknegt 2015).
In December 2008, Bagosora was found guilty of a range of crimes
including crimes against humanity and genocide and sentenced for life
imprisonment in a verdict that exercised extreme caution in its venture into
historical narrative. In acquitting Bagosora on the charge of conspiracy to
commit genocide, the judges allowed the distant possibility that “other or
newly discovered information, subsequent trials or history may demonstrate
a conspiracy involving the Accused prior to 6 April to commit genocide. This
Chamber’s task, however, was narrowed by exacting standards of proof and
procedure, the specific evidence on the record before it and its primary focus
on the actions of the four Accused. In reaching its finding on conspiracy, the
Chamber considered the totality of the evidence, but a firm foundation cannot
be constructed from fractured bricks…the process of a criminal trial cannot
depict the entire picture of what happened in Rwanda” (UNICTR, Bagosora,
2112). The ICTR’s disposition in Bagosora then, tilted away from any
attempt to establish an historical record of the genocide, even though the
accused was one of the most high-ranking officers in the Rwandan Defence
Ministry.
Other cases at the two ad hoc international tribunals lay along on a
continuum of historical depth and complexity, producing different results and
prompting conflicting assessments. The ICTY has accused 160 persons
beside Milošević, including four self-proclaimed heads of state, at least four
prime ministers and five Chiefs of General Staff of different warring sides,
and the number of ministers, municipality leaders, military, and police
dignitaries can be counted in the dozens. It also leaves behind over 2.5 million
pages of transcripts of these trials, and many more pages of documents
entered as evidence, as well as visual material pertaining to the war in the
former Yugoslavia and testimonies of over 10,800 witnesses. (ICTY,
Infographics). However, the soundness and historical depth of the ICTY’s
judgments did not translate into impact in the region of the former Yugoslavia
(Klarin 2009, Milanović 2016).
If we take into account how disputed the ICTY’s judgments still are in
the states of the former Yugoslavia, and how insignificant the impact of its
historical narratives were on the transition to a shaky version of democracy
(Subotić 2009, Trbovc 2017), we must arrive at the sobering conclusion that
transitional historical narratives are seldom the dominant voice in post-

conflict deliberation on the past, and at best they can only shrink the space
for denial (Orentlicher 2008; Fischer 2015). Obviously, the responsibility for
the lack of impact of transitional historical narratives cannot be attributed
solely to the judicial institutions themselves, as the receptivity (or otherwise)
of politicians and other public figure in the national political context is a key
factor in the uptake of the popular audience.
Even if the ICTY’s own self-assessment is overly optimistic that “the
Tribunal’s judgements have contributed to creating a historical record,
combatting denial and preventing attempts at revisionism and provided the
basis for future transitional justice initiatives in the region (ICTY
achievements),” in comparison with other international criminal tribunals, in
terms of producing historical narratives, the ICTY has set a high benchmark
(Wilson, 2011). Other international tribunals have not attained that standard
and have been heavily criticized for their selectivity, politicization, or mere
lack of professionalism, which in the realm of historical narrative amounted
to “fact finding without facts” and “fictions of justice” (Combs 2010; Clarke
2009; Buss 2014). A permanent international criminal tribunal, the
International Criminal Court, opened its doors in The Hague in July 2002 and
has since indicted 42 persons (Kamuli 2014). The pace of justice at the ICC
has been glacially slow and the rate of acquittal or dismissal of charges is
significantly higher than at other tribunals. As of early 2018, nineteen
proceedings were completed at the ICC, resulting in a paltry five convictions.
The quality of the judgments themselves has been mixed, and historical
evidence has been much less prominent in the case theories of either the
prosecution or defense.
In part, this results from the generally narrower scope of ICC indictments
and the absence of “joint criminal enterprise” in the ICC Statute, a collective
mode of liability that propelled a more contextual approach to the crimes.
The ICC is constituted more like a civil law court than the ICTY or ICTR,
and judges play a more influential role in case management and thereby may
exclude historical evidence brought by the parties that they determine does
not have probative value. Furthermore, certain valuable and innovative
practices of ad hoc tribunals were not adopted at the ICC. One reason why
the ICTY excelled at historical inquiry was because the Office of the
Prosecutor included a 30-strong team that other international tribunals have
not replicated: the “Leadership Research Team” which integrated experts on
the region and crucially, from the region, and included historians, linguists,
military experts and other non-law specialists. Such a team with contextual
expertise is even more necessary at the ICC, which has jurisdiction in
potentially scores of countries, but fails to cultivate the same level of cultural,
historical and regional expertise as the ad hoc and hybrid tribunals. Thus far,
the signs at the ICC are not auspicious with respect to either accountability

or historical inquiry.
V. Conclusions
As we have seen, transitional justice institutions, while not producing

historical accounts of the same scope and quality as professional historians,
can produce adequate and comprehensive accounts of mass atrocities. Trials
and other high-profile legal events make history not only by indicting and
judging major political figures but also by launching powerfully sanctioned
narratives about the past that can confirm, correct, or contest official state
versions of the past. Historical narratives are not a mere byproduct of
investigations into mass atrocities, but an essential aspect of national and
international criminal trials and truth commission fact-finding. Wilson
(2011:20-1) argues that historical narratives repeatedly appear in
international court judgments precisely because they are legally relevant in
the adjudication of mass violence, building on Lawrence Douglas’ (2001:4–
7, 260–1) observation that at Nuremberg and in Eichmann, legal imperatives
propelled collective historical inquiry. Contra Arendt’s declaration of the
legal irrelevance of history in Eichmann, historical discussions are embedded
in the adjudicative process of criminal law.
In the post-1989 era, historical contextualization has assumed
prominence because of the increased application of legal concepts that
demand proof of a heightened discriminatory intent to harm a group based
upon its collective characteristics. International criminal law requires that
crimes against humanity be “widespread or systematic,” which implies a
close examination of the overall context in a country, not merely the
individual crimes in question. The legal definition of genocide requires proof
of “special intent” on the part of the perpetrators. The actors must have been
aware of, and consciously acting in pursuance of, a sustained policy of
extermination of a protected group, in whole or in part, and this implies an
account of intergroup relations over time. Prosecutors often introduce
historical evidence to demonstrate criminal intent, usually via historians
serving as expert witnesses, and this has illuminated the historically
constituted strategies of the main perpetrators as they committed mass crimes
in pursuit of a grand political objective (Greater Croatia, Greater Germany,
Greater Serbia, etc.) (Dojčinović 2014). Defense attorneys often review
evidence of historical crimes committed against members of the defendant’s
national group to indicate why their client acted as he or she did, with a view
to mounting a tu quoque defense and mitigating their sentence. Truth
commissions assessing a charge of genocide (as in Guatemala) provide
significantly more contextual reflection than those commissions (as in
Argentina) where only a political group is targeted. In courts and

commissions, the mens rea (or, “criminal intent”) requirements of

international crimes make recourse to history very likely, if not unavoidable.
Thus, it is often not a matter of whether the parties produce an historical
narrative in their case theory and arguments, but how they deploy one, and
using what methods and with what effects on the outcome of the trial. After
the parties rest their case, courts must then choose between competing and
often incommensurate historical explanations in formulating their own
transitional justice narrative. Ideally, this process generates a firm baseline of
understanding that serves as bulwark against the historical revisionism, denial
and outright lies about the past that are prevalent in the public culture of post-
conflict countries. However, that is not to say that the historical message is
smoothly constructed, conveyed and received. Authors like Osiel expect too
much when embracing a concept of a liberal show trial with pedagogical ends
(2008). Even a single court judgment or commission report rarely expresses
a single coherent narrative (Simpson 1998), and there is even more variance
across the judgments of an international tribunal that conducts a number of
trials.
Evidently, the narratives of transitional justice institutions are not created
in a vacuum. Even if there were an overarching and consistent message in a
judgment, a court or commission history enters into a crowded field where
many political actors, some of them parties to the conflict, advance their own
interpretation of past events. The proceedings of courts and commissions
operate in a complex environment in which law, politics, history, and
memory are intertwined and turned into an extraordinary media event. The
prominence of this public ritual is well established (Teitel, Osiel), but the
ability to control its creation and in particular its effects, seldom rests with
any single individual, party or institution.
Transitional justice may be theatre; however, it is one with several
screenwriters, directors, executive producers, investors, and of course,
uncooperative dramatis personae. And as with any play, its meaning changes
over time. Some, like the Leipzig War Crimes Trials of 1921 are quickly
forgotten. Others, like Nuremberg, remain permanently central, but are re-
interpreted anew with every generation. One need not embrace
postmodernism tout court to endorse the insight of U.S. General Telford
Taylor (1971, 13-14), veteran of IMT and NMT prosecutions, that “today
Nuremberg is both what actually happened there and what people think
happened, and the second is more important than the first.” Contemporary
transitional justice narratives produce immediate effects, but also have a
delayed impact. Ultimately, they are both what they are and what subsequent
generations make of them. Their message can be magnified or muted,
crystalized or distorted, forgotten or institutionalized, as well as reinterpreted
within the field of contestation between advocates, opponents and

intermediaries.
This point is valid for both trials and commissions. By focusing on the
political context in which transitional justice institutions are established, and
in particular by examining how they are constituted within nation-state
structures or intergovernmental bureaucracies such as the United Nations, it
is possible to encompass both truth commissions and criminal prosecutions
within the same analytical framework. This allows us to rethink the binaries
of criminal law v. truth commissions or history v. justice and to try to
understand why some courts and truth commissions have failed or succeeded
in producing defensible historical accounts of the past. The critique that
transitional justice narratives are reducible to national politics is valid only
up to a certain point, we contend that it is less true for internationally
constituted institutions. It is undeniable that international institutions lack
coercive apparatus of the nation-state and are usually reliant on states to
enforce powers of search, subpoena, seizure and arrest. International courts
and commissions are buffeted by nation-state and global actors who seek to
control their indictments, constrain their access to evidence, and hide those
facts the parties to the conflict find unpalatable.
Having said this, international tribunals and commissions tend to be freer
from direct interference from the nation-state and powerful domestic actors
seeking to avoid public opprobrium. The historical narratives produced by
transitional justice institutions are more likely to address structural and
political factors in the conflict when the institutions are internationally
constituted, and when their investigations are guided by categories that
accentuate the collective dimensions of violence. The involvement of
international agencies in both courts and commissions can presage a more
balanced, comprehensive, victim-centered and compassionate process of
history writing.
However, far from being a universal panacea, this is only a precondition.
International versions of transitional justice are still processed and consumed
locally. The practice of adjudication is fractured, fragmented, and contingent
process that is shaped by the efforts of distinctive parties to assert their
strategic vision of the past. The eventual historical narrative emerges from a
concatenation of competing claims and the shifting fortunes of an array of
disparate actors at the national and international levels. Transitional historical
narratives are only one vector of memory, entering an arena of contested
visions of the past. As judgments enter the public space where the
conversation has often moved on from the violent conflict to more
conventional political matters, their reception remains uncertain.
Transitional justice histories are caught on the horns of two conflicting
impulses. They aim to document the atrocity and therefore trigger an ethical
and political transformation in the direction of democracy and an open

society where diversity and co-existence is the norm. However, in order to

persuade, they need to be accepted by a deeply divided society. This complex
negotiation is vulnerable to two risks – there is a temptation to produce a
watered-down and consensual version of history and “publicly affirm only
what is already impliedly known in the society, as transitional processes bring
forward and enable a public letting go of the past.” (Teitel, 2001, 163-4).
Conversely, there is also a temptation to produce an account which,
although more accurate, would immediately be dismissed by one side in the
conflict as unbalanced and representing a continuation of the conflict by other
means. These complexities and contradictions are increasingly recognized in
the recent literature examining truth commissions, trials (Golsan 2018) and
history-telling (Brants 2013). Both tendencies are aggravated by officials
who seek to salvage the legitimacy of state institutions and the reputations of
existing officeholders who may be tarnished by their association with an
authoritarian past (think Francois Mitterrand in France, and Kurt Waldheim
in Austria).
This leaves us with several uneasy conclusions. Shining examples of
transitional historical narratives are not easy to find. They are rare, and their
manifestation does not come with a one-size fits-all recommendation. Efforts
to address post-conflict societal rifts are inevitably accompanied by a
fractured view on the past. Reports and judgments of transitional justice
institutions which aim to unify the post-conflict society by generating an
agreed official account of past abuses operate in an eminently political field.
Whether the initial impetus comes from a national or international institution,
it is indispensable that there be local political will to build on a transitional
justice narrative through a set of non-judicial practices, including a process
of historical memorialization, popular education for subsequent generations,
and political party platforms that include legal remedies for victims.
Empirically, such a consensus is usually lacking in post-conflict
circumstances, which is why high expectations about the production and
consumption of transitional historical narratives are likely to be frustrated.
Transitional justice institutions cannot build a political consensus on their
own, no matter how compelling and persuasive their historical narrative on
mass atrocities. They require support from social movements and the political
establishment, and the taking up and deepening of accountability and history
by national courts and from international institutions and agencies. Idly
waiting for a consensus to emerge is not an option either, so in the meantime,
the most realistic option is a pragmatic exploration of any available avenue,
be it national, international, judicial or quasi-judicial, which aims at
documenting, exposing or judging mass violence, accompanied by critical
evaluation of their transitional historical narratives. Again, we reiterate our
point that the social and political process unleashed by embarking on the path

of historical inquiry is as vital as the final written outcome in a commission

report or legal judgment.
As the unbridled enthusiasm for a global order of cosmopolitan justice
that prevailed at the end of the twentieth century is replaced by a more sober,
nay somber, cast of mind, scholars are more sanguine about the prospects of
transitional justice narratives and some argue for a serious rethinking of the
post-conflict justice project for the 21st century (Sharp 2018). Indeed, in the
present context of resurgent nativism and authoritarianism, it is more
important than ever to produce credible historical accounts about past human
rights abuses, in courts, truth commissions and elsewhere. Even where those
eventual accounts are incomplete and disappointing, merely embarking on
the process of documenting past atrocities creates a public space for argument
that is preferable to a regime of silence, distortion and denial.

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Forthcoming in The Oxford Handbook on Transitional Justice.

Transitional Justice Histories

The future is certain. It is the past that is unpredictable.1

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production, consumption and impact of transitional histories, and why are

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public inquiries frequently galvanize public opinion and generate social

II. The Debate: The Legalization of History

Transitional justice as a field is premised on a critique of the capacity of

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inherently irreconcilable. Historical debate has become an inescapable

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III. Truth and Reconciliation Commissions

The critique of national criminal justice institutions’ capacity to write

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The promise of truth commissions notwithstanding, the actual historical

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Commission for Historical Clarification (Comisión Para el Esclarecimiento

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non-governmental organizations such as the International Center for

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individual criminal responsibility. Additionally, the historical account an

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IV. Post-Cold War International Criminal Tribunals

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Hague (Steinberg 2011). Meanwhile in Arusha, the ICTR indicted 93 persons

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of the crimes. In the Balkans, individual Croats committed extensive crimes

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As we have seen, transitional justice institutions, while not producing

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commissions, the mens rea (or, “criminal intent”) requirements of

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society where diversity and co-existence is the norm. However, in order to

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of historical inquiry is as vital as the final written outcome in a commission

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Adler, N. 2018. “Introduction.” In Understanding the Age of Transitional

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postcolonial state. Durham and London: Duke University Press.

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Consolidation of Democracy in Latin America.” Political Studies 1995,

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41/trial-judgements/en/081218.pdf (accessed on 4 March 2018).

Electronic copy available at: https://ssrn.com/abstract=3914435

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