On truth, facts, and (maybe) reconciliation

Reconciliation is a receding target, it would seem. In the first place, there is something discomfiting about the structure of the word. It implies that there was an earlier condition of conciliation that has been lost, and that there is a process (presumably involving recognition/acknowledgement and mutual forgiveness) by which it can be once again achieved. Viewed this way, it appears to be a transposition from relationship therapy from small groups onto political cultures and societies. A formulation often  found in this situation is  a phrase frequently used in politics but never defined: “confrontation with the past.” In the simplest version of this formulation, there is an operative assumption that some combination of legal process and research will lead to the establishment of something called “truth,” that recognition of this “truth” will result in the establishment of something called “justice,” and that the achievement of “justice” will catalyse into something called “reconciliation.”

Both the formulation and the analogy are problematic. The formulation is problematic because it treats as simple and mechanical processes that are in fact complex and contested/volatile/fragile/difficult to define, while implicitly assuming that processes interest in which is confined to a small elite (such as legal trials) can have profound and predictable consequences on a public that is not addressed by or engaged with them. The analogy between interpersonal relationships and relationships between diverse social collectives is problematic, because it treats the members of different societies as uniform in thoughts and perceptions, tending to reduce their positions to those   held by their respective governments.

However, probably the most contested of all of the terms involved in the equation is “truth.” To speak of “truth” in the context of a series of violent conflicts that involved many different kinds of institutions, in which deeply held sentiments were mobilised for the support of political projects, and in which much activity was either disguised beforehand or covered up afterwards, is to impose a level of certainty on contentions that are still to a large measure controversial or unknown. When a group of former internment camp inmates offers up the slogan “silence is complicity” (as they did on the 26^th of  June  this year, http://radiosarajevo.ba/novost/156576/foto-podrska-zrtvama-torture-iz-sarajeva-tisina-je-saucesnik#), they are speaking a truth derived from their experience and from a sense that the needs of victims have been in large measure unmet. When the Bishop of Sisak, Monsignor Vlado Kosic, argues that a criminal, convicted and then released,  for whom he has organised a welcoming Mass, is a “moral giant” (as he did on the 20^th of June  this year, http://www.jutarnji.hr/biskup-kosic–krdic-je-nepravedno-osuden/1200426/) because he did not give evidence against higher-ranking officials, he is also speaking a truth derived from a complex of institutional and political loyalties. There are in fact a number of incompatible truths competing with one another in the post-conflict environment. What they have in common with one another is that a particular set of facts is bound up with a particular set of values and interests.

What we do not have, and most likely never will have, is consensus around a universal “truth.” Should one ever be found, it will represent the achievement of a political goal, not a goal derived from either legal processes or research.

So what kind of goal  could conceivably be achieved? If the term “truth” seems excessively ambitious and certainly prone to manipulation and misuse, something of a lower range,  establishing the facts, might offer a more useful starting point. It is not without reason that legal discourse frequently refers to a court as a “fact finder.” In many respects, it can be said that documentation provided at criminal trials has helped to establish beyond doubt a great number of facts, and has made public material that will help to establish a great many other facts.

In this regard, it might be expected that criminal trials would cover a good deal of the distance toward establishing facts regarding the conflict, and as a consequence, contribute to the construction of more reliable and shareable “truths.” In practice, however, it is apparent that the institutions of criminal law have not achieved that goal. In some of my research, I have offered the argument that this is largely because shifting contexts and points of view assume a larger role than the facts that are inserted into them. But there is also a range of more fundamental problems, many of them deriving from the simple principle that, generally, a court will  not answer a question  it is not asked.

In the first place, no series of legal trials can succeed in producing a comprehensive set of facts that will amount to a complete account of events – or even seek to do so..Notwithstanding the frequent assertion that “history is being written by…” [insert your favourite collective noun here: the victors? the foreigners?], what happens at these trials is not the writing of history. At most, it constitutes an intervention into history. Out of the large number of people who committed legal violations, a small number are selected for prosecution, either because something about their activity has a representative character or because there is evidence available that makes the probability of conviction higher. Out of all of the things for which these people could be held responsible, a smaller selection is made for the filing of criminal charges, generally because of the existence of a clearly applicable law or of evidence related to these charges. Inevitably, the result is that the record of legal prosecutions, even where there is a durable and well-financed effort to be comprehensive, tells only part of the story. The legal record is more likely to tell small parts of the story in great detail than it is to provide a general overview or broad understanding.

In the second place, legal professionals, whether they are working for the prosecution, for the defence, or as judges, set themselves a narrow range of goals. They understand their purpose as proving, raising doubt about or deciding on a set of facts that relate to a concrete criminal charge, attempting in the process to assure fairness and adherence to a set of formal procedures. In particular, they understand the trial as a process involving parties before the court, and are frequently inclined to suggest that large and somewhat abstract categories like “victims” or “the society” are not parties to cases and consequently have no interests to be represented. So, while prosecutors in particular used the rhetoric of “reconciliation” for a while (they have generally stopped by now), this was never taken seriously as a goal of their activity, least of all by the legal professionals involved in the criminal cases.

In the third place, the record left by judicial institutions, as we have been able to observe after two decades of experience, shows traces of being influenced by factors other than the quest for truth. Controversies in domestic courts over matters like the anonymisation of indictments and the length of sentences point both to legal uncertainty and to a lack of consensus regarding the purpose of legal trials. In its later period, the ICTY has been used as a laboratory for testing novel legal theories, and some of this activity has required disregarding the evidence that the chamber has had  before it. A result of this was not only the sustained controversy over decisions like the ones in the Oluja, Perišić and Stanišić cases (on this point see the excellent analysis by Christopher Jenks, http://www.jstor.org/stable/10.5305/amerjintelaw.107.3.0622), but also a sustained conflict within the Tribunal itself, with judges acting as parties choosing sides. One effect has been that the status of judicial verdicts as the final word in cases has been undermined; increasingly, they look more like interventions into arguments than resolutions of them. Another consequence is that of all the material that will make up the eventual legacy of the criminal trials, the judicial verdicts may turn out not to be among the most useful or valuable.

But perhaps most importantly, some of the knowledge that could contribute most to reconciliation involves facts that are not likely to form a constitutive part of any legal indictment. This includes facts that remain unknown because they have not been completely investigated, such as  reliable numbers for the victims and missing persons from different parts of the conflict. It also includes facts about which consensus does not exist, such as the date that the conflicts began. And it includes facts that are in need of explanation even though they did not involve criminal offences, such as the role of social institutions such as religion and the media in the promotion and endorsement of violence. These are all categories of facts that the courts are not likely to engage, but that the public across the region has an interest in knowing. If definitive accounts of them are to be produced, they will be through public and not legal involvement.

The shortcomings of legal processes reside, for the most part, in factors internal to the practices and processes of criminal law. These problems are accompanied by another issue that magnifies them, which is the failures of communication between institutions of criminal law and the societies where they operate or exercise oversight. On one level, these failures can be attributed to a set of institutions that do not regard the public as one of their clients, and on another level, they can be attributed to the lack of political will in the states involved to generate full and reliable accounts that could take the place of the self-serving ones developed during the period of conflict.

This suggests that the knowledge that could contribute to reconciliation, or at a minimum to shared understandings that allow for dialogue to take the place of confrontation, can only be produced through the engagement of a public that declares the need for it. The institutions and politicians to whom this job has been entrusted so far are not likely to take the lead. And if there is any chance that members of the publics in the states of the region will recognize/acknowledge or forgive anything, they will first have to know what it is.

Eric Gordy, professor, University College London, School of Slavonic and East European Studies