Democracy Without Justice in Spain. Omar G. Encarnacion

(1958: 214) that “we are unable to forgive what we cannot punish and we are unable to punish what has turned out to be unforgivable.” Certainly, Arendt was not arguing against confronting evil deeds—far from it. Rather, she was warning about the limitations of man-made mechanisms to cope with such heinous crimes as genocide. As such, Arendt’s views on prosecuting human rights abusers stand at odds with the perception of transitional justice as a transformative force capable of bringing closure about a difficult and painful past.

      Most criticisms of transitional justice, however, are more precise and tend to focus on one of the two models above for coming to terms with the past. Arguably, the most noted criticism of retribution is the potential danger of morphing into revenge, which in turn can make transitional justice the source of conflict and recrimination rather than peace and reconciliation. For this reason, many advocates of criminal prosecution for human rights abusers support the principle of “selective prosecution” when deciding whom to go after for punishment for the old regime’s crimes. Inaugurated with the Nuremberg Tribunal, and revived by the military trials in Argentina in the mid-1980s, selective prosecution aims at bringing justice to the individuals most directly responsible for the violence and abuses of the old regime (usually heads of state, high-level military officers, and directors of security and intelligence) rather than everyone involved in the repression of society.

      Criticism of reconciliation has been more widespread, a reflection, perhaps, of the popularity of truth commissions. Some have decried the abrogation of justice entailed in the exchange of truth for amnesty that characterizes South Africa’s TRC, while others have lamented the conflation of religion and politics injected into the process of reconciliation, another legacy of the TRC. Crocker (2000: 6) has noted that Archbishop Tutu’s ideal of “social harmony” is not only “impractical” and “unrealistic” but also “morally objectionable,” because no truth commission or any other government body should “force people to agree about the past, forgive the sins committed against them, or love one another” (6). In voicing these concerns, Crocker implicitly advocates for the right of those on whom irreparable moral harm has been inflicted to withhold forgiveness and perhaps even harbor bitterness and resentment toward their abusers.

      A more general criticism of reconciliation is that it is a very poor substitute for justice. By and large, this criticism reflects the structural nature of truth commissions. These bodies are generally defined as much for what they do—to establish the “official” truth about specific historic events—as for what they do not do (see Rotberg and Thompson 2000; Rosenberg 1996; Hayner 2001). Truth commissions usually lack the power to punish or prosecute human rights abusers; they also are seldom empowered to implement whatever recommendations are issued in the final report. The extent to which recommendations for reforms and reparations made by a truth commission make it into law is usually left to the discretion of the politicians, who often have little incentive to see them implemented since this often entails significant political risks. All of this has led many to downgrade expectations about what truth commissions can actually accomplish. Ignatieff (1996: 112) writes that, at most, truth commissions can be expected “to reduce the number of lies that can be circulated unchallenged in public discourse.”

      Another criticism of reconciliation is whether the ambitious objective of creating a national narrative about the past that is supported by a broadly shared collective memory about historical events is of actual use to democracy. As observed by Müller (2002: 19), “In the end we may have to accept that contested, conflicting, and competing memories are an inevitable legacy of transitions to democracy. But that in itself might not be such a bad thing; after all, democracy itself is a form of contained conflict—and as long as memories remain contested, there will be no simple forgetting or repression tout court.” Müller adds (19) that “rather than aiming for some elusive social consensus in which one narrative of the past is enthroned, arguing about the past within democratic parameters and on the basis of what has been called an ‘economy of moral disagreement’ might itself be a means of fostering social cohesion.”

      Truth commissions have also been criticized for the troubled conjoining of history and memory, as suggested most pointedly in the popular concept of “historical memory,” which falsely implies that history and memory are always comfortably aligned. Those responsible for compiling the final report of a truth commission generally base their findings on personal testimony rather than on rigorous historical research. The former is prone to manipulation and politicization, and, in any case, is highly subjective and notoriously fallible. This privileging of personal testimony over actual historical fact-finding generally reflects the desire of truth commissions to serve as a vehicle for victims’ voices to be heard and recorded for posterity. As argued by Jelin (2003: 54), articulating victims’ voices is an essential part of the reconciliation process since it works against the image of those abused by the old regime as “passive victims.” But for others, reliance of truth commissions on personal testimony poses the risk of memory replacing history, which in turn can lead to misrepresenting rather than representing the past. For Müller (2002: 19), “memory has turned into a secular religion, or at least an ‘ersatz metaphysics,’ which feeds on a new emotionalism, and gives rise to endless grievance claims couched in the language of personal memories.” A “soft-therapeutic concept of memory,” even a kind of “boundless mnemonic subjectivism,” takes the place of “traditional, hard historical approaches and truths.”

      A harsher indictment of truth commissions is that an excessive emphasis on memorializing the past can effectively prevent countries from moving on. Augé (2004: 88) has theorized that humans, either as individuals or as a community, have a duty to remember as well as to forget: “Those who were subjected to it (a traumatic past), if they want to live again and not just survive, must be able to do their share of forgetting, become mindless, in the Pascalian sense, in order to find faith in the everyday again and mastery over their time.” Analogizing remembering to gardening, Augé contends that memories are like plants: “there are those that need to be quickly eliminated in order to help others burgeon, transform, flower.” In a similar vein, the political commentator David Rieff has decried the emergence in the transitional justice movement of a “memory fetish” that can create historical distortions that do little to bring about political reconciliation and can in fact help perpetuate discord and war, while praising the capacity of forgetting for allowing countries to move forward.¹³

      A different type of critique of transitional justice comes from within the movement itself and calls attention to zero-sum arguments in which retribution is seen as preferable to reconciliation and vice versa, by arguing that no single model of transitional justice can deliver a successful coming to terms with the past; that this can only be secured through a combination of things. The ICTJ advocates a “holistic approach” to transitional justice, a proposal that incorporates not only criminal prosecution of the leaders of the old regime and a truth and reconciliation commission, but also reparation for the victims of human rights abuses, reformation of state institutions, such as the courts, the police, and the security apparatus, the erection of museums and memorials intended to “preserve public memory of victims and raise moral consciousness about the past abuse,” and even “gender justice,” defined as challenging “impunity for sexual-and gender-based violence” to ensure “women’s equal access to readdress of human rights violations.”¹⁴

       A Case That Challenges the Rules

      Spain, a case of almost complete noncompliance with transitional justice, significantly expands on the critique of transitional justice laid out already by highlighting several important challenges that so far have gone largely unnoticed. First among these is the assumption that coming to terms with the past, through retribution and/or reconciliation, is a prerequisite or precondition for successful democratization. This claim is implicitly stated in the bleak scenarios that have been painted for nations that neglect to dispense justice for the old regime—from undermining the consolidation of the rule of law by perpetuating a culture of impunity, to preventing society from moving forward, haunted by the memories of unaddressed collective traumas, to, worst of all, inviting the recurrence of evil. But there is little in the Spanish experience to support these contentions.

      The de facto impunity institutionalized in Spain with the Pact of Forgetting has led some to criticize