Transitional Justice Symposium: Building upon Ruti Teitel’s Seminal Work–Towards a Transitional Justice Narrative

[Valeria Vegh Weis is a Post-Doctoral Fellow at the Freie Universität Berlin an Associate Researcher at the Max Planck Institute for European Legal History and a Professor of Criminology at Buenos Aires University.]

Introduction

Re-reading Ruti Teitel’s Transitional Justice makes for an even more moving experience than expected. The book, written nearly 20 years ago, set the basis for a ground-breaking field of study, bringing to light important legal, political, and ethical dilemmas such as truth versus justice and reparations for victims versus structural inequality, and even suggesting possible ways to overcome them.

A particularly interesting part of the book, though somewhat overshadowed by many other key points, is its reference to transitional truth regimes (2000, 83), or transitional narratives (ibid., 85), “socially constructed within processes of collective memory” (ibid., 70). What is meant by collective memory? Teitel clarifies that it “is a process of reconstructing the representation of the past in the light of the present. Yet, the reconstruction process takes a distinctive form in periods of transition [as it is aimed at] drawing a line of discontinuity, even as there is also adherence to some historical and political continuity” (ibid., 70-1). Therefore, the crucial challenge of transitional narrativeshas to do with “striking a balance between discontinuity and continuity” (ibid., 71).

Indeed, transitional narrativescan be conceived of as a result of this awkward balancing act,involving a social agreement about the past, present, and future. Defining the past includes answering what happened, who were the victims, who were the perpetrators and why did the crimes happen; the present—how to approach the transition, including its mechanisms and priorities; the future—how to prevent this from happening again and how ought society remember what happened. If a sufficient level of social agreement is reached, transitional narratives may help give victims dignity, clarify the role perpetrators played in committed human rights violations, bring about a new consciousness in civil society of the events, and prevent the recurrence of crimes.

It is undoubtedly a perplexing enterprise: “How do societies go about constructing their pasts in a way that is collectively understood as shared and true? How do they establish what happened during much-contested periods of state history often involving massive state crimes?” (Teitel 2000, 71). There are no easy answers, but Teitel tackles the question head on: “In transitions, the pivotal role in shaping social memory is played by the law [via] trials, truth commissions, official histories” (ibid., 71-2). Building on these thoughts, this short commemorative article will try to determine what the components of transitional narratives areand who the most legitimate leading forces behind them are.

The components of transitional narratives: a factual and an axiological level

The factual level: reliable and false transitional narratives

The first level of the transitional narratives shall respond to the factual content or “what happened?”. As transitional processes involve contested voices, some parameter is needed to answer this question. How to distinguish between reliable and false narratives? A possible answer is to do so in relation to the proximity or distance from the truth. The complex notion of truth has already been studied from different disciplines (see, for example, Ortega Ruiz and García Miranda 2019). For the purpose of this article, it will be assumed that “truth” consists of verifiable facts that arise from at least two (2) of the following instances that, as Teitel clarifies, are intrinsically related to the law, i.e. exhumations, archives, declassified documents, torture sites identifications, and testimonies. Truth disclosure via any of these instances allows for the delegitimization of false narratives and the expansion of reliable narratives, reducing the disputes among contradictory accounts of the past.

To exemplify, those accounts that deny the existence of forced disappearance in Colombia today could be considered as false narratives. This is because research conducted by recognized institutions such as the Centro Nacional de Memoria Histórica (see here) and based on exhumations, testimonies, and forensic skills, among other truth-finding mechanisms, estimate the number of disappeared people at 80,000. Another possible example has to do with narratives that keep on characterizing Colombia as a post-conflict society. Indeed, complex and on-site investigations carried out by the International Committee of the Red Cross (see here) delegitimize the post-conflict characterization as a false narrative. This is because, even though the confrontation between the government and the FARC has made important progress, the country is still experiencing at least five non-international armed conflicts involving various armed groups with less clear and more fractured structures than the FARC. These five conflicts are between the government and the National Liberation Army (ELN), the Popular Liberation Army (EPL), the so-called Gaitanista Self-Defense Forces of Colombia and the former structures of the FARC’s Eastern Bloc that did not participate in the peace process, and between the ELN and the EPL in the Catatumbo region (ibid.).

Notably, the factual level of the transitional narratives shall not only address the superficial facts but also the structural reasons that made human rights violations possible. As Marks (2009) clarifies, researchers and power holders tend to be deeply interested in questions about ‘how’, ‘what’, ‘where’, ‘when’, ‘who’ and ‘who’, while extremely reserved when it comes to asking about the ‘why’. Particularly in the area of ​​human rights, the risk is that most analyses condemn human rights abuses or violations, but do not to provide substantive analytical arguments regarding the forces causing those violations. Disregarding “why” human rights violations took place in the first place might lead to some sort of voluntarism as a solution to all problems. This becomes clear in slogans such as ‘deep your commitment!’, ‘stop violence’ o ‘let us be united as a society’ as framings of a magic solution. For example, in 2006, ten years after the South African Truth and Reconciliation Commission, the Human Rights Commission publicly and “retrospectively” stated its failure for not having recorded the economic and political strategies that supported Apartheid and colonialism, including forced eradication, dispossession and racialized exploitation (Kollapen 2005). In other words, the Truth Commission made it clear “what” and “how” Apartheid occurred, but did not clarify “why”, leaving the socio-economic structures that made Apartheid possible intact until today. Instead, digging into the structural causes could expand the wide spectrum of intentional and unintentional factors that condition social processes.

In sum, the first level of the transitional narrative (what we might call “the factual level”) involves distinguishing between false and reliable narratives and revealing “what” happened concerning the human rights violations along with the “why”, i.e. the search of the ultimate causes of the conflict.

The axiological level: anti-rights and rights-based transitional narratives

So far so good, but how do we know what is most desirable for the present and the future? Is it even possible to refer to a “desirable” narrative? Even if it is, is there a “desirable” narrative for all cases? These questions can be approached at the second level of the transitional narratives, which presents the axiological content. Searching for desirable or universal values ​​has always been a challenge that carries the risk of ignoring the particularities of the specific cases and the different interests at stake. Following once again Teitel’s focus on the relevance of law, it is possible to expose that certain globally shared values have been agreed upon as desirable; these are the human rights recognized by international law: international human rights law (IHRL) and international humanitarian law  (IHL) (CoIDH 1999, paras. 4 and 14; Fehrer 1999). Notably, neither human rights instruments nor the international jurisprudence is neutral, but the result of struggles and interests based on class, gender, race, and ethnicity criteria. However, this does not neglect that IHRL and IHL can also be used in concrete situations in a potentially transformative manner (Vegh Weis 2020).

With these precautions, it is possible to identify the existence of anti-rights and rights-based narratives. The first ones are those that propose a course of action in contradiction with the IHRL and IHL, while the latter refers to those narratives that follow IHRL and IHL.Exemplifying, a narrative that conceives and discloses that the desired solution to the Colombian conflict lies in the indiscriminate use of force to exterminate all guerrilla forces, paramilitaries or groups operating outside the law disregarding regulations on non-international armed conflict could be regarded as an anti-rights narrative because this solution opposes the Geneva Conventions, as the IACHR clarifies (2014, para. 22).Conversely, a narrative that indicates that the desirable path is to advance in peace agreements even if they involve partial amnesties for offenses that do not constitute war crimes or crimes against humanity could be considered as a rights-based narrative as international courts have accepted this solution as harmonious with IHRL and IHL (see, for example, CoIDH 2012, paras. 285 and 286).

In short, the second level of the transitional narrative refers to an axiological substratum that involves “what to do” or “what is the most desirable way” to confront the committed human rights violations. Defining what is desirable can be infinitely complex, but, when dealing with transitional justice matters, IHRL and IHL offer a set of universal values ​​that can serve as a mandatory reference. These values ​​arise from the international regulations subscribed by the states and the jurisprudence of the international bodies created by those regulations.

The struggle between conflicting narratives: Who is the legitimate actor to build a hegemonic reliable and rights-based transitional narrative?

In contrast to other types of historical narratives or memory processes (e.g. the foundation of a country), transitional narratives are not centered in heroes and great deeds (see Vezzetti 2007, 6). Instead, the victims are those who – to enforce their rights before the state- become representatives of the ethical and political reconstruction of society. By associating their claims with universal values ​​and principles of the legal order, victims are the ones who become carriers of memory and the struggle for rights (ibid. 21-2). Indeed, victims have a transformative vocation that stands out among the other actors at stake. Victims are those who are most affected by the human rights violations that occurred, those who have relevant information about what happened, those who need reparations to rebuild their lives, those who are intimately interested in guaranteeing justice, and those who have concrete perceptions of the institutional and cultural changes that can be made to avoid the repetition of the human rights violations.

However, the current mainstream focus on participatory or victim-centered mechanisms may not be enough to allow victims to unleash their potential. First, the participation/centrality approach leaves victims in the role of “guests” in which another actor is the one who decides to invite or to participate them. This is especially risky when the powerholders expose a shaky or hesitant commitment to the transitional process. This jeopardy is even more relevant in contexts like Argentina or Colombia that suffer from political instability. Second, the mere participation of victims in a sociopolitical context dominated by perpetrators can leave intact the routines and relationships that change-oriented strategies need to challenge, as the Kenyan case exposes (see Matt 2012; Vegh Weis 2020b forthcoming). Third, even if the victims are effectively invited to be part of a genuine transitional process, this generally takes place by involving individual victims but not their collectives, while conceiving each of them as “beneficiaries” or “passive recipients” but not as active political actors. Moreover, participatory strategies are usually framed in terms of reconciliation or therapy, prioritizing counseling and other practices aimed at alleviating the psychological distress of the individual victim, without allowing their voices to raise in order to build a transitional narrative.

Therefore, it might be the case that is not the participation or the centrality of the victims but their leadership – together with civil society – which can lead us on a more consistent path toward real transformation (see Vegh Weis 2017). Shall we explore a victim-driven path for the enforcement of a transformative transitional justice process based on a reliable and rights-based transitional narrative? There is a first glimpse of a necessary discussion to be continued (Vegh Weis forthcoming). So far, transitional justice actors shall feel satisfied for having a monumental work as Ruti Teitel’s Transitional Justice which provides a solid basis for almost all the dilemmas and challenges that the field encompasses.