"Transitional Justice Histories: Narrating Mass Atrocities." Forthcoming in the Oxford Handbook on Transitional Justice. Alex Hinton, Lawrence Douglas, and Jens Meierhenrich, eds., Oxford University Press.

Abstract

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 transitional justice institutions 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. Our review of the historical accounts of transitional justice institutions evaluates 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. Next, we compare the histories produced by international institutions to those of domestic institutions. 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 affected by mass violations. International institutions also have capacious rules of evidence, allowing them to admit 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 public inquiries frequently 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 contested process of history-writing moves us away from a rigid dichotomy 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.