Democracy Without Justice in Spain. Omar G. Encarnacion

against humanity” is usually the charge, which places the genesis of retribution in the landmark Nuremberg International Tribunal, the ad hoc court convened by the victorious Allies in 1945–1949 to prosecute former Nazi officials for the horrors of the Holocaust. At the conclusion of the trials, Nuremberg prosecutors were successful in obtaining verdicts that included the death penalty for 12 high-ranking Nazi officials, 10 of whom were hanged on gallows erected at the courthouse where the trials were held, and in putting on trial lesser actors such as doctors, lawyers, and industrialists affiliated with the Nazi regime. This achievement accounts for Nuremberg’s reputation as having served “an important exemplary and jurisprudential function” for how nations should confront the misdeeds committed or sponsored by a prior regime (Judt 2002: 161), even as the legacy of the trials remains the subject of debate among historians (Rabkin 1999; Hirsch 2008; Rodden 2008).¹⁰

      Foremost among the virtues linked to retribution is strengthening the rule of law by boosting the principle of equality under the law and due process for all parties in society since it demonstrates that no one is above the law. The absence of prosecution, by contrast, is thought to undermine the rule of law by perpetuating tolerance of a culture of impunity and disregard for human rights. Garton Ash (2002: 269) notes that “the fact that the torturers or the commanders go unpunished, even remain in office, compromises the new regime in the eyes of those who should be its strongest supporters.” At a more practical level, making former despots pay for past political misdeeds is thought to serve as a deterrent against future human rights abuses. According to this view, trials not only enforce moral norms, they also drive home the point about the consequences of wrongdoing. This was a key rationale behind the staging of the Nuremberg trials in the first place. At the end of World War II, several British and American politicians, including Winston Churchill, favored swift execution of the main architects of the Nazi regime without due process. But as U.S. Secretary of War Henry Stimson, a strict legalist, observed in making the winning argument in favor of political trials over extrajudicial killings, “We should always have in mind the necessity of punishing effectively enough to bring home to the German people the wrongdoing done in their name, and thus prevent similar conduct in the future” (Cooper 2009: 92).

      Prosecuting the previous regime is also seen as necessary for rooting democratic values in society and encouraging ordinary citizens to support these values. Behind this association of justice and democracy is the belief that dispensing justice against an old regime can act as a teaching moment capable of transforming public attitudes. According to Teitel (2000: 3), transitional justice contributes to the “defining feature” of democratic transitions by grounding within society “a normative shift in the principles underlying and legitimizing the exercise of state power.” Accordingly, it is widely assumed by transitional justice proponents that “the better the transitional justice, in the sense of having more vigorous, morally engaged and pedagogically adequate trials, the better the democratizing outcome will be” (Pendas 2008: 58).

      Reconciliation’s chief concern is establishing an official record of the human rights abuses of the old regime rather than prosecuting that regime. South Africa’s TRC is widely regarded as the paradigmatic example of reconciliation.¹¹ Because of the primacy accorded to truth-telling, reconciliation advocates have been known to support partial or full amnesty for members of the old regime, something generally regarded as anathema by retribution advocates. As noted by Benomar (1993: 5), “tactical and prudential considerations,” such as whether new democracies can survive convicting and punishing the previous regime, generally underpin any decision to forgo prosecution. But the driving force of reconciliation resides in truth-telling itself, as a means to shift attention in the dispensing of justice against the old regime away from the perpetrators of human rights abuses and toward their victims, with trials often seen as too legalistic to adequately convey the suffering of the victims. Aukerman (2002: 71) contends that “while trials may have moments of high drama, their formalism and rigidity can also make them excruciatingly boring.”

      A desire for truth-telling also stems from the belief that only a complete accounting of the horrors of the past can bring about societal catharsis from the trauma inflicted by large-scale human rights abuses. “The truth will set you free” is a popular refrain among reconciliation advocates that features prominently in the work of transitional justice organizations. According to Boraine (2006: 20), “Documenting the truth about the past, restoring dignity to victims and embarking on the process of reconciliation are vital elements in the creation of a just society.” The catharsis that the truth is meant to achieve is also generally seen as a precondition for forging ahead with the future, with that future usually a stand-in for democracy. Rosenberg (1996: xviii) has argued that “nations, like individuals, need to face up to and understand traumatic past events before they can put them aside and move on to a normal life.”

      Reconciliation is also animated by the idea that developing a consciousness about past abuses can prevent future abuses. Analyzing the importance of remembrance to the transitional justice movement, Garton Ash (1998: 35) notes that many scholars have made coming to terms with the horrors of the past a necessity for “redemption” for past wrongs and for avoiding “the recurrence of evil.” Such arguments echo the post-Holocaust German concept of Vergangenheitsbewältigung, broadly understood to stand for “mastering” the past for the purpose of avoiding its reoccurrence (Maier 1988; Herf 1997; Langenbacher 2005). Analogous views are evident in Western political philosophy running from Greek philosophers (Plato in particular) to the Spanish-American philosopher George Santayana, who is credited with the popular aphorism “Those who cannot remember the past are condemned to repeat it.”¹²

      Last, but not least, reconciliation is premised on the view that justice is intrinsically intertwined with forgiveness, an assumption that draws from the Christian tradition and that has granted religion and reconciliation “an elective affinity” (Philpott 2007: 2). Indeed, for some, the use of religion in discussions of reconciliation represents one of the most overt displays of “public religion in the modern world” (Casanova 1994). According to South African archbishop Desmond Tutu (1999: 52), the TRC’s charismatic chairman, “justice is being served when efforts are being made to work for healing, for forgiveness, and reconciliation.” From this thinking emerged what has been termed “restorative justice,” a victim-centered process of political reconciliation that aims to empower and restore the dignity of victims (Braithwhite 2002). It requires that human rights abusers assume responsibility for their misdeeds by offering the kind of apology that leads to a dialogue between the offender and the victim. In doing so, restorative justice brings “victim, perpetrator and community together to determine what is needed to put right what is wrong” (Nagy 2002: 325).

      Whether they favor retribution or reconciliation, transitional justice advocates are in agreement that the transition to democracy is the most appropriate time for nations to confront a difficult and painful past. The core message from what has been termed “the transitional justice culture” is that “the moment of transition is the golden opportunity to forge a new, democratic social contract, and that the new democratic future envisaged by that contract will be possible, and will last, only by using the law to confront and overcome the repressive and abusive past” (Golob 2008: 127). This view is underpinned not only by the obvious symbolic importance of the transition to democracy as a marker of a new political destiny but also by the realization that the transition could well be the only opportunity for confronting the past. “It’s now or never” is another ubiquitous phrase among transitional justice activists in making the case for attending to the past during the transition to democracy. Behind this popular claim is the worry that delaying or deferring justice can result in neglecting to confront the past by allowing other problems to crowd the political agenda (like fixing the economy or drafting a new constitution). There is also the fear that the passage of time can weaken societal resolve for justice by allowing time to claim the memory and lives of those most directly affected by the crimes of the old regime.

      Transitional Justice and Its Critics

      Both as a theory and as practice, transitional justice has invited a host of controversies. Among the most compelling critiques of transitional justice is the philosophical view that some crimes are so heinous and incomprehensible as to be beyond the capacity of the law to find ways to repair the damage they cause and/or to overcome