Time & Transitional Justice

With regards to transitional justice, the dimension of time is important in three primary ways. First, in relation to retributive mechanisms, time is often a limiting factor. If the goal is to punitively punish perpetrators of violence, the practical question of how long such a process would actually take needs to be asked. Second, time plays a role in attaining reconciliation between perpetrators and their victims. The ability for cultures to arrive at a state of reconciliation tends to increase as time progresses because it allows for the repair of relationships and overall social infrastructure. Finally, time must be recognized for its role in the formation of collective memory. How members of a culture talk about and remember their experiences in connection with the experiences of those around them forms a gestalt conceptualization of what took place and how it was resolved, and this conceptualization has the capacity to change over time as conditions continue to evolve. In brief, transitional justice institutions need to consider time’s impact on retribution, reconciliation, and time’s role in the formation of collective memory.

The western reaction towards examples of mass violence and civil unrest is the desire for the perpetrators of that violence to be brought in front of a court and properly tried for their crimes, but in many cases this is just not practical, or even feasible based upon just how long the trial process would have to take. Looking at the aftermath of the Rwandan genocides, the 100,000 suspects in prison posed a formidable number of cases that needed to be brought to trial, and one Rwandan Minister of Justice official estimated that it would take up to 200 years for the domestic courts to adjudicate them all (1). Clearly taking 200 years to painstakingly go through each and every one of the myriad cases involved in the killings was not an option, thus adjustments had to be made to retributive mechanisms to account for temporal limitations. Continuing to seek prosecution when long periods of time are required to do so is stressful on those trying to recover, and can prevent a culture from moving beyond the crisis itself. Northern Uganda endured twenty years of conflict before efforts for peaceful resolution began. They were already physically and emotionally strained; it isn’t hard to fathom why the extended process required of punitive action was not the most attractive approach to transitional justice on the national level. So, by implementing a policy of amnesty, the hope was to “work towards a non-violent resolution, an outcome which would allow displaced communities to finally go home and workable accountability options to be brought into focus,” (2) in a more time-efficient manner than was assessed to be feasible using more retributive-based mechanisms. Uganda’s solution allowed people to begin working together on repairing society the day after the policy of amnesty was officially put into action. The tribunals demanded by the international community would have taken months to years to accomplish in a country that was already divided, war-torn and ragged.

But, it should be noted that depending on the way events are officially recognized, time is not always a limiting factor to retributive mechanisms per say. In the case of the 1965-1966 slaughtering of alleged communists in Indonesia, the killings and imprisonments themselves were the justice accepted by the country’s officials, and with some small vocabulary changes this justice was communicated to the people in a way that swept the moral magnitude of the killings themselves under a cultural rug. Benedict Anderson writes, “Thus communists arrested by the military, then executed or imprisoned for years without trial, were said to have been di-amankan, which can be translated as ‘secured,’ for the sake of keamanan or ‘public’ security. In later years, when generals got the itch to write their memoirs, they used the same euphemisms. They had ‘secured’ communists. . .” (3) To Indonesia, as time progresses from the period of slaughter, the success of their form of retributive justice, being political cleansing, becomes seemingly strengthened by employing this switch in narrative to encourage ignorance and approval of past actions. Thus, in this circumstance time plays a contributing role to the efficacy of retributive justice by manipulating the maxim of justice itself to better fit national and international political motives.

With regards to efforts for reconciliation, time has the ability to benevolently change the ways that people think of themselves and interact with one another following a period of crisis. In Peru, the context of time is given specific temporal localizations used to periodize history. Sasachakuy tiempo refers to specific time periods during and after the conflict. Jesús Romero “emphasized that times change and so do the people who live within those different periods. He also explained that traditions change, as do the laws governing a particular tiempo.” (4) By recognizing that people change according to the period of time, people in Peru were able to undergo perceptual and moral recalibrations that allowed perpetrators to reconcile with their past. This lead to the Repentance Law being passed in 1992 that gave members of the guerrilla the opportunity to repent, turn themselves in, and receive lighter sentences assuming they cooperated with authorities (5). The passage of time also aided the healing and reconciliatory process within Sierra Leone following their civil war. Actions of violence perpetrated by one person against another, seemingly after a sufficient amount of time had elapsed, become more easily forgivable on the part of the victim. Something as violent and traumatizing as being severely beaten by one’s friend before watching that friend murder one’s father, after seventeen years, can apparently still be forgiven and amendments made (6). With a logic similar to Peru’s sasachakuy tiempo, headmen in towns like Mapetifu in Sierra Leone recognized that the period of crisis and the actions of people within that period of crisis should preferentially be left behind in that past to encourage reconciliation, focusing on the rebuilding of local infrastructure and stability. They did not ask about newcomer’s past wartime actions and experiences. Instead, they simply asked the ex-combatant if they planned to rejoin those in the bush and whether or not their hearts had sufficiently “cooled”, then accepted them assuming they followed the rules of the town (7).

Time’s passage allowed the people of Peru and Sierra Leone to progressively achieve reconciliation as a function of that time, but more time does not necessarily always translate into more reconciliation. The state of affairs here in America is a prime example of this. Even though it has been 151 years since the signing of the emancipation proclamation and 51 years since Johnson signed the Civil Rights Act, there is still little evidence to demonstrate genuine, lasting reconciliation of historical tensions. To this day, “black families making $100,000 typically live in the kinds of neighborhoods inhabited by white families making $30,000”, “black home buyers — even after controlling for factors like creditworthiness — are still more likely than white home buyers to be steered toward subprime loans,” and “in 2012, the Manhattan Institute cheerily noted that segregation has declined since the 1960’s. And yet African Americans still remained — by far — the most segregated ethnic group in the country.” (8) This presents reconciliation with a problem that time itself cannot fix: there must be a genuine motivation on the part of the perpetrator to provide adequate reparations, otherwise all the time in the world will not be enough to make the suffering and injustices of the past completely fade away.

Time and memory are inextricably linked by definition, because a memory itself is a mental reconstruction of an event that occurred in the past. According to Koselleck, memories impact the way that we temporally structure our experience: “Experiences overlap and mutually impregnate each other. In addition, new hopes or disappointments, or new expectations, enter them with retrospective effect. Thus, experiences alter themselves as well, despite, once having occurred, remaining the same.” (9) Memories have to be recognized within the larger matrix of that society’s collective memory, otherwise, “we might as well assume that a heavy object, suspended in the air by means of a number of very thin and interlaced wires, actually rests in the void where it holds itself up.” (10) The passage of time itself alters this matrix of experiences and social interactions, and therefore the collective memory of the past. Time can be employed by a people to silence certain memories from being more prominently conveyed into that of the collective, as observed in the cultural silencing of traumas experienced by Cambodians (11), the propagated silencing of key events in the cultural memory of the Spaniards (12), the spiritually motivated silence of the Mozambicans (13), as well as in the political silencing of Tutsi-perpetrated violence in Rwanda (14). The cultural memory of past events has been invariably influenced over time by such silences in these countries.

When silence is discouraged through the use of narratives in a TRC or tribunal, the ways those narratives are interpreted have to be understood in the context of temporally evolving social relationships among those who participated and were affected in those violent events (15). Commentators on the proceedings of the gacaca courts in Rwanda spoke to this concern, pointing out that the judges of those proceedings were also usually the family or neighbors of the suspects and survivors who were participating in the general assembly, and therefore are likely to have vested interests in the outcome of the hearings (16). Such sentiments have been echoed by critics of the ICC in Uganda who note that many of the victims have their own “axes to grind” (17). On a similar vein, overall ability for subjects to accurately remember details of lost loved ones that could otherwise be helpful in the location and identification of the deceased were often influenced by their own temporally changing circumstances in Bosnia (18). Objective events that happened are indeed frozen in time, but the manner in which individual memories, and subsequently the memory of the collective, are formed around those events as time progresses beyond the period of crisis are subject to changes that may or may not accurately represent factual reality. Events are static, whereas collective memories, as a function of time, are quite plastic.

The dimension of time is intimately intertwined with the ways transitional justice institutions ought to view retribution, reconciliation, and the formation of overall cultural memory. Time tends to be a limiting factor for attempts at retribution. Conversely, time tends to be a facilitating factor for reconciliation. The organization of temporally-bound events within the group consciousness of a culture is subject to change as the social interactions between those affected by crisis evolve, thus time itself provides the medium in which the ways a people speaks about a period can be altered. Without taking the dimension of time into proper consideration, practical application of transitional justice mechanisms cannot be sufficiently achieved.

(1) Peskin. 2009. “The Struggle to Create the International Criminal Tribunal for Rwanda”. International Justice in Rwanda and the Balkans. pp 157.
(2) Clarke, Kamari. 2009. Fictions of Justice. Ch 3 “Multiple Spaces of Justice; Uganda, the ICC, and the Politics of Inequality”. pp 140.
(3) Anderson. 2010. “The 1965 Massacre in Indonesia and its Legacy”. pp 15.
(4) Theidon. 2013. Intimate Enemies. Ch 7. pp 210.
(5) Theidon. 2013. Intimate Enemies. Ch 8. pp 234.
(6) Sara Terry. “Fambul Tok”. 2011. Catalyst for Peace production company.
(7) Shaw et al. 2010. “Localizing Transitional Justice. Ch 6 “Linking Justice With Reitegration? Ex-Combatants and the Sierra Leone Experiment”. pp 125.
(8) Ta-Nehisi. 2014. “The Case For Reparations”. Atlantic Monthly.
(9) Thiranagama. 2011. In My Mother’s House. Ch 2 “House of Secretes”. pp 88.
(10) Halbwachs. 1950. The Collective Memory. pp 49.
(11) Carol A. Kidron. “Alterity and the Particular Limits of Universalism; Comparing Jewish-Israeli Holocause and Canadian-Cambodian Genocide Legacies”. Current Anthropology. Vol 53, No 6. December 2012. pp 733.
(12) Encarnacion. 2014. “Democracy Without Justice In Spain: The Politics of Forgetting”. Ch 3 “History, Politics, and Forgetting in Spain”. pp 48.
(13) Igrega and Dias-Lambranca. 2008. “Restorative Justice and the Role of Magamba Spirits in Post-Civil War Gorongosa, Central Mozambique.” Traditional Justice and Reconciliation after Violent Conflict. Huyse and Salter, eds. IDEA. pp 61.
(14) Burnett. 2012. “Amplified Silence”. Genocide Lives In Us. pp 111.
(15) Dwyer. 2010. “Building a Monument: Intimate Politics of “Reconciliation” in Post-1965 Bali. Transitional Justice, Ch 10, pp 242.
(16) Clark, Phil. 2010. “The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda. Ch 5 “Gacaca’s Modus Operandi: Engagement Through Popular Participation”. pp 144.
(17) Wilson. 2011. “Writing History in International Criminal Trials”. Ch 8 “Permanent Justice: The International Criminal Court”. pp 212.
(18) Wagner. 2008. “To Know Where He Lies”. Ch 4 “Memory at Work”. pp 133.

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