On the edge of politics and the law: justice, memory and

forgiveness in former Yugoslavia

Dimitrios E. Akrivoulis, Assistant Professor of International Relations in the Balkans,

Dept of Balkan Studies, UOWM, GR

Please note: This is a revised and inclusive version of the following papers:

a) Akrivoulis, D.E. (2009). "Beyond reciprocity and conditionality: the enigma of political

forgiveness." Paper presented at the 59th Annual Political Studies Association Conference,

2009, "Challenges for Democracy in a Global Era." University of Manchester, Manchester,

UK, April 7-9, 2009.

b) Akrivoulis, D.E. (2008). "On the edge of politics and the law: justice, memory and

forgiveness." Paper presented at the 2008 Annual British International Studies Association.

University of Exeter, Exeter, UK, December 15-17, 2008.

c) Akrivoulis, D.E. (2008). "On the edge of politics and the law: justice, memory and

forgiveness." Paper at the 58th Annual Political Studies Association Conference, 2008,

"Democracy, governance and conflict: dilemmas of theory and practice." Swansea

University, Swansea, UK, April 1-3, 2008.

d) Akrivoulis, D.E. (2008). "The enigma of political forgiveness: the (im-)possibility and

incognito of forgiveness.” Paper presented at the Annual Conference of the Association for

Legal and Social Philosophy, 2008, "Global justice." Centre for the Study of Social and

Global Justice, University of Nottingham, Nottingham, UK, March 27-29, 2008.

Abstract

For the Ancient Greeks, truth (a-letheia=non forgetting) relates less to the facticity of

facts than to the averting of forgetfulness. In that sense, justice aims by definition

toward truth, not merely in the sense of revealing the historical reality of the crime,

but in the much stronger sense of averting the danger of forgetting. Justice invites

memory. Nevertheless, the institutional implementation of justice in former

Yugoslavia has been accompanied by political strategies of collective amnesia,

indicative of cases of regime change and political transition, in the name of peace, of a

common future, of political unity or “progress”. In any case, institutional justice

proved to be unable to remedy the memory of suffering. The outcome has been either

the reproduction of estrangement and enmity, when memory is preserved, or peaceful

political co-existence, when forgetting is opted or imposed. The most crucial ethico-

political challenge concerns the questioning of the above syllogism: Is peaceful co-

existence possible, while the memory of an excruciating past is preserved? Which are

the limits of judicial retribution in such a case? Is it ever possible for forgiveness to

acquire a certain political content and what is its relation to memory or forgetting?

This essay attempts to explore the possibilities of justice, memory and forgiveness

exactly at their meeting point: on the edge of politics and the law.

November 23, 1999. Capping a ten-day trip in Europe, President Bill Clinton arrives

in Pristina, Kosovo, to share an early-thanksgiving dinner with some of the 6,000 U.S.

troops stationed there. At the airport he has closed-door briefings with Gen. Klaus

Reinhardt, KFOR commander in Pristina, and Bernard Kouchner, U.N. Special

Representative and Head of UNMIK. Then, he takes a helicopter south to

2

Ferizaj/Uroševac, where he first meets with leading figures of the local Albanian and

Serbian communities. The daily program ends with an open speech at a chilly sports

hall, overcrowded by cheerful Kosovar Albanians. Clinton opens his speech noting

the determination of the United States against Milosevic‟s practices of ethnic

cleansing. Referring to the repatriation of Kosovar Albanians, his tone becomes

poignant: “Mr. Milosevic wanted to keep control of Kosovo by getting rid of you, and

we said no. Now he has lost his grip on Kosovo and you have returned. No more days

hiding in cellars. No more nights freezing in mountains and forests.”1 Clinton‟s

promise is enthusiastically received by his audience, waving hundreds of tiny

American flags, singing songs with the President‟s name. Every single phrase seems

to invite a wave of ecstatic applause, at least until he urges the Kosovar Albanians to

forgive the Serbs: “You cannot forget the injustice that was done to you. No one can

force you to forgive what was done to you. But you must try.”2 As soon as the phrase

is translated, a stony silence settles on the crowd and all excitement seems to

disappear.

This very silence, as so many others in the face of a call for forgiveness, is one

of the starting points of the present article. To be precise, this essay does not focus on

the possibility of forgiveness in former Yugoslavia. Building, instead, upon the

uneasiness in the face of a difficult forgiveness, it ponders on the limits of any

institutional attempt to complete the work of justice in the broader sense; to respond,

that is, in a definite, redemptory and permanent manner to memory‟s claim for justice.

History has proven that when the call for forgiveness is made by government officials

or is echoed in an institutional rhetoric promoting reconciliation, it is often qualified

as the last recourse to the impasse of institutional justice.

Forgiveness appears to be an a-political option. Nonetheless, it is not foreign

to political practice. To the contrary, a closer look at the practices of states reveals its

persistence in international political life. I would say that identifying forgiveness as an

a-political category implies less about the essence of forgiveness itself, than about the

1 New York Times, 24 November 1999, A12.

2 Ibid. Four years later, Clinton repeated a similar plea to forgiveness in his speech at the Seventh

Annual Awards Dinner of the National Albanian American Council in New York: “In the process of

forgiveness, those who have been wronged, those who have been done wrong, they have to do the

forgiving. … If you hated every Serb for the rest of your life no one could blame you, but it‟s not the

right thing to do. They got rid of Milosevic and we have a chance to build a better tomorrow. Justice is

never done and forgiveness has never been achieved until the people who have been done wrong take

the lead. That‟s the lesson of Rwanda, that‟s the lesson of Nelson Mandela and that is why Kosova can

be the diamond of Europe in the 21st Century.” Clinton 2003.

3

way we have come to understand politics. Contrary to all other manifestations of

political life, forgiveness is friend to the principle of philanthropy and strange to the

principles of reciprocity and retribution, upon which politics has been thought to be

embedded since the Ancients. Forgiveness is even introduced as a clearly anti-

political faculty, due to its implicit constituent of love.

Perhaps, we have spent too much ink writing on the vertical axis of politics,

that we have come to neglect the very horizontal axis that makes politics possible in

the first place (the will to live together). Perhaps, Arendt‟s evocation of love as the

philia politikē of the philosopher, rather than the agape of the apostle,3 seems too

fuzzy a concept to allow ourselves to observe the self-evident: that the origin of the

faculty of forgiveness is eminently political, because it always already depends on

human plurality; that it is always already practiced on the axis set by the planes of

antagonism and exchange between capable human beings.

Indeed, our explorations on the faculty of forgiveness are very limited. Indeed,

they may even be short-sighted, at least to the extent that they may either a) lead to an

essentialist reading of politics fundamentally based upon the Western metaphysics of

a universal Christian ethos, or b) invoke forgiveness in political practice as an

ideological instrument or rhetorical device merely serving political expediency.

However, our excavations on the possibilities of politics may be benefited from

realizing the “im-possibility” of forgiveness.4 Forgiveness is located on the very edge

of politics and the law; and there it meets the difficulties of remembering and the

unfinished of justice. From this imaginative vantage point it allows us to rethink the

possibilities and the limits of our juridico-political institutions of retribution and

reconciliation. In a sense, forgiveness functions as the mirror of justice.

The case of former Yugoslavia is of particular relevance to the study of the

above categories. Despite all peace treaties that have delineated the borders of the

succeeding political entities and have set the conditions for peaceful multiethnic

coexistence, the future of the region still remains uncertain, questioning the respective

institutional processes of normalization and compromise. During the past decade, the

efforts of the international community have been focused on carving these processes

while aiming at the institutional implementation of justice. Nevertheless, the

3 Arendt 1958, 243.

4 In one of their meeting-departure points, Ricoeur and Derrida have suggested on the fundamental

enigma of political forgiveness that its possibility lies in its “im-possibility”. Ricoeur 2000a; Derrida

2001.

4

foundations that could guarantee a true and permanent reconciliation between the

once belligerent groups have not been set yet. With all its constant fighting and

reconciliation attempts, the case of former Yugoslavia appears on the eve of this

millennium as one of the already multiplying cases, where the burden of past

sufferings condemns the present to the repetition of violence. The more recent

conflicts in Kosovo and the FYR of Macedonia stand as apt evidence for this.

In this environment of conflict and alienation, the institutional implementation

of justice and any reconciliation attempt has met particular difficulties relevant to the

transition process of the former Yugoslav republics. The institutional implementation

of justice, for example, has been often accompanied by political strategies of

collective amnesia, indicative of cases of regime change and of political transition in

the name of peace, a common future, political unity or „progress‟. In any case, the

institutional implementation of justice proved to be incapable of remedying the

memory of suffering, and fully mediating the rupture between the pasts and the

presents of the respective communities. As in almost all cases of mass crimes, this

inability has been reinforced by a subsequent broadening of the sense of guilt: Beyond

individual accountability, guilt further encloses the collective responsibility of the

members of the political community connected to certain criminal actions, as well as

that of their descendants. The result is either the reproduction of estrangement and

enmity, when memory is preserved, or the implementation of a fragile peaceful

coexistence, when forgetting is opted or imposed.

I argue that questioning this very syllogism brings us in front of a crucial

ethico-political challenge: Is peaceful coexistence possible, when the memory of past

sufferings is preserved? Which are the limits of the law and of institutional justice in

this case? Is it ever possible for forgiveness to acquire a certain political content and

what is its relation to memory or forgetting? In its following sections, the paper will

attempt to explore the possibilities of justice, memory and forgiveness exactly at their

meeting point: on the edge of politics and the law.

The Memory of Justice, the Justice of Memory

True descendants of Electra, the citizens of Kosovo or Bosnia and Herzegovina relive

on a daily basis the sufferings of conflict and human loss.5 The same curse has also

5 See Schieder 1978; Euben 2003.

5

spread epidemically in FYR of Macedonia. The option of forgetting a painful and

irreversible past, along with the investment of all human energy and time in the

construction of a new future appears to be the safest and most effective remedy. In the

case of former Yugoslavia, where the past appears to condemn the present and the

future to implacability, alienation and the repetition of violence, the imperative to

forget the past, both the victims and the perpetrators, is often seen as the price to be

paid for a better future.

The above reasoning forces us to accept that the perseverant claim for justice

relevant to the debt of remembering, even when the work of institutional justice is

done, is but an irrational and dangerous choice. We therefore stand with aporia or

suspicion in front of all those peoples that remain adherent to a violent past,

sacrificing the prospect of a promising future. Our uneasiness toward the tragic figure

of Electra, who is guided by the shadow of her murdered father, is similar to the one

we share when rethinking the wars in former Yugoslavia. We are not merely puzzled

with the persistence of the open woods in the succeeding entities. After all, in the case

of former Yugoslavia, the temporal span dividing the crimes of the past from their

echoes in the present is not great enough to excuse such puzzlement. In that sense,

James Booth is right to note that we have come to treat the persistence of the memory

of an evil past as “negative, divisive and irrational precisely because these individuals

and peoples have lost the use of their future-oriented compass”.6 We would also add,

however, that this problematic bias becomes even more perplexing in cases such as

those of Kosovo and FYR of Macedonia, where part of the population still sees the

current political arrangements as unjust and accepts them only as short-lived, or in

cases such as that of Bosnia and Herzegovina, where the once belligerent „other‟ is

made invisible and absent, although living next-doors.

Voiced in the midst of wilderness and revolution, modern political thought has

been often calling for an irrevocable break with the past of suffering, loss and despair,

as the price to be paid for the longevity of political community. The memory of past

sufferings has been thus seen as an obstacle to the restoration of order, a malignant

process that rekindles the desire for revenge, instead of serving the pressing needs of

the present.7 This modern call for collective amnesia in the name of peace, order, and

progress should be read less as an alert against the “trifling and fruitless or

6 Booth 2001, 777.

7 Paine 1979, 64; Bacon 2008a. See also Terdiman 1993.

6

destructive”8 remembrance of past wrongs, than as a reminder that justice could

hardly be exhausted in the workings of its institutions; that justice is instead

irrevocably connected to the workings of memory. In that sense, the form of justice

we are addressing here appears to be closer to its understanding as Dikē by the ancient

tragic poets, who recognized memory as one of the faces of justice.9 This conceptual

leap involves neither a post-modern move, nor a recourse to a supposedly uniform

understanding of justice in classical antiquity. Instead, it involves a detour to the

subtlety of the tragic poetry of an Aeschylus or a Sophocles, where Dikē appears as

one of the fundamental dimensions of remembering an excruciating past.10

The Furies

serve justice by controlling the memory of evil. Their mission is to make sure that the

miasma will never be forgotten: the evil that returns as remembrance must not be

forgotten. Time should not reverse the workings of justice.11

Their mission is never

complete before the perpetrator is punished.12

Once we recognize this special relation between memory and justice, it is

difficult to miss the relevance of former Yugoslavia to our analysis. Indicative in this

respect is President Clinton‟s constant plea to preserve the memory of the atrocities

committed in Bosnia-Herzegovina and Kosovo, aiming at legitimizing NATO‟s

intervention as a manifestation of Dikē.13

The savageness of the crimes committed

demands, for Clinton, an international response. Remembering the former is a

precondition for the legitimization of the latter: “Ending this tragedy is a moral

imperative.”14

In Clinton‟s rhetoric, military intervention appears as the legitimate

response by the international community to the claim for justice. This claim is

accompanied by the formal plea of the head of a state to preserve the memory of an

excruciating past as a debt to the deceased and as a sine qua non condition for

mediating between estranged communities.

Similar pleas have been repeatedly echoed at the official level in former

Yugoslavia, in order to serve multiple and often conflicting purposes. The most

characteristic case is perhaps the plea made by Agim Ceku, Prime Minister of the

Kosovo region and former military commander of UCK. For Ceku, the Albanian

8 Booth 2001, 777.

9 Aeschylus 1971, line 381; Sophocles 1994, line 870.

10 Loraux 1997, 275.

11 Ramnoux 1959, 148.

12 Simondon 1982, 224.

13 See Ben-Porath 2007.

14 President Clinton 1999, 451. See also Cochran 2002.

7

community bears the imperative not to forget the vicious crimes committed by the

Serbian militia during the war. When asked by a journalist about the possibility of

forgiveness in the process of inter-communal reconciliation, Ceku responded

repeating Clinton‟s plea: “Yes, of course. Not to forget, but to forgive, yes. We have

to do this.”15

Although such pleas are expressed at the official level, the kind of justice they

call for is not exhausted at the level of institutions. The necessity to preserve the

memory of an evil past appears as the community‟s task beyond governmental or

judicial dictates.16

This non-institutional justice is but a manifestation of the

community‟s identity and historicity in the collective imaginary of its members. The

available means of expression are opted depending on their ability to offer a fair

interpretation of the past in the public narrative, visual, and ritual discourse of the

community. The community pays its debt to its dead and at the same time evokes the

injustice that its members have endured. The persistence of the excruciating past in

the collective memory of the community functions as a substitute to those

institutional-judicial processes. When serving justice, memory becomes an integral

part of the collective identity of the community.

This non-institutional claim for justice, however, never escapes the power

configurations and political arrangements in the respective community. It is either

subsumed by or breaks with the institutional forms of memory management,

reaffirming or questioning both the identity and the delineation of political

community. Indicative in this respect is the practice of raising memorials of victims or

statues of heroes under the initiative of local communities. In the case of former

Yugoslavia, the perplexity of this practice reflected the complexity and the

antagonism of ethnic and national identities. After Tito‟s death, historical revisionism

gradually led to the questioning of the common national experience, outbidding

interethnic enmity. The result was a rise in bringing down statues and memorials,

especially after the breakup of the federal union. Obviously, the destruction of these

memorial sites was accompanied by the raising of new ones. In Croatia, for example,

there were destroyed more than 3,000 WWII memorials. In Slovenia, there were

raised memorial plates commemorating those who collaborated with fascism mostly

15

Cited in Angyal 2007. 16

Similar calls are also included in unofficial discourses and practices, or expressed through artistic

means, from cinema to city-street graffiti. Kent 1997, 1085-114; Morgan 2002, 365-79; Iordanova

1997, 22-8.

8

under the initiative of local communities. In Bosnia and Herzegovina, the sites

destroyed were mostly religious. In Serbia, this practice was turned against the

memorial sites of eminent Croat or Slovene members of the communist party. In FYR

of Macedonia and in Montenegro, this destructive practice was rather limited due to

their special place in the federal union. In any respect, interethnic strife was

represented in the antagonism of memory representations reflecting conflicting claims

to justice.17

Memory‟s call for justice, however, may be also expressed as a formal plea to

collective forgetting. In such cases, the perseverance of the memory of evil is treated

as an impotent adherence to the past, preventing the community to move ahead,

toward a future of peace, unity, progress, Europe, market economy, etc. Tito‟s regime,

for example, had banned any discussion on the crimes committed by the ethnic

communities of Serbs, Croats and Bosniaks against each other during WWII. There

was adopted an overall strategy of collective amnesia and removal of these crimes

from the collective Yugoslav memory in the name of brotherhood and national unity

guaranteed by the great leader. The final outcome, however, was the transformation of

personal testimonies of those crimes into popular myths that were later transmitted

within every ethnic group from one generation to the other enriched by a certain

ideological surplus value. The case of the infamous WWII concentration camp of

Jasenovac in Croatia aptly serves as a typical example. Until the 1990s, the estimates

about the number of victims in this camp had been remarkably exaggerated and

differed from one ethnic group to the other, manifesting the ideological workings of

the respective narratives: On the one hand, the Croats suggested that during the war

20,000 people died in this camp mostly out of disease. On the other, the Serbs

supported that the number of victims rose to a million, most of whom were Serbs

slaughtered by the Croat Ustashe. After Tito‟s death, the leaderships of the respective

ethnic groups tried to make the most out of the unsolved history of the camp to serve

their own political expediencies.

Closely related to the institutional strategy of collective amnesia is the logic

behind amnesty as a means to attain peace. During the peace talks that eventually led

to the Dayton Agreement in 1995, there was coined the proposal to grant amnesty to

Radovan Karadžić and Ratko Mladić, among others, as the necessary price to be paid

17

See Vjekoslav 2004; Manojlović and Ignjatović 2007.

9

for the normal ending of the longest-lasting conflict in European soil since WWII.

The proposal was evidently not successful, the accused ones were blocked from the

talks and the Dayton Agreement reaffirmed the obligation of all parts involved to

cooperate with the International Criminal Tribunal for Former Yugoslavia (I.C.T.Y.),

which was founded to avert the impunity of those found guilty.

The above calls for remembering and forgetting are not necessarily expressed

in a mutually exclusive manner. Often expressed in parallel, they conflict but also

supplement each other. This is particularly evident in former Yugoslavia not only due

to the antagonism between the respective choices or strategies, but mostly due to the

fact that the unease relation between the calls for remembering and forgetting worked

in parallel with regime change. On the one hand, the institutional implementation of

justice aimed at closing the case and limiting the burden of remembering an

excruciating past. On the other hand, the call for forgetting attempted to silence

memory in the name of the future.

In the last section we will return to the importance of the unofficial, unbidden

manifestations of memory. In the next three sections, we will examine three judicial

or semi-judicial manifestations of memory based on how they relate to the past of

former Yugoslavia: a) the punishment of the perpetrators (I.C.T.Y.), b) the

recognition of the crimes committed (truth commissions), and finally c) a

forgetfulness in the name of progress or political unity (amnesty). The first

manifestation of memory concerns the judicial implementation of justice. The second

one does not aim at either prosecution or punishment, but at disclosing the truth,

recognizing and assuming responsibility for the sufferings inflicted upon the victims.

Finally, amnesty is a form of politico-judicial forgetting that aims at effacing an

excruciating past from collective memory. The utmost aim of this latter manifestation

is almost always political peace and unity, the protection of the young and fragile

democracy from the persistent adhesion to the past and from the danger of revenge.

Judicial Retribution

As in any other case of transitional justice, the primary functions of retributive justice

in former Yugoslavia have been a) to insure that the evil policies of the fallen regime

will be punished, and b) to avert the danger of a counter-revolution that would attempt

to restore the fallen regime. This penal procedure marks the rift between the new and

10

the old regime allowing the former to better consolidate its power in the people‟s

collective subconscious. Furthermore, retributive justice comes to avert and respond

to human passion of revenge.18

Perhaps no other form of justice serves better the

principles of reciprocity and retribution, upon which politics is thought to be

fundamentally based, than retributive justice. Nevertheless, in the present section we

are mostly concerned with another dimension of retribution, namely its intricate

relation to memory.

During the last century, the claim for retributive justice in the face of mass

violations of human rights and/or genocide has been always grounded on the moral

responsibility of preserving the memory of the crimes, the victims and the

perpetrators. In that sense, retributive justice is always already “retroactive”.19

Its

principal aim is not to provide a therapy to the trauma, or to legitimize the new

democratic regime, or even to preserve the community‟s identity. Retributive justice

has to be based on the law: nullum crimen nulla poena sine lege.20

However, the

Nuremberg trials have taught us that in cases of crimes against humanity retributive

justice serves the rule of law in a broader sense, it primarily responds to the command

of memory.21

By prosecuting the perpetrators of mass crimes, the trial resists the

forgetting of injustice and the impunity of the perpetrators.22

The Furies do not act as a substitute to the legal order, but as its supplement.

The punishment of the perpetrators may not restore the status quo ante of the victims,

but it restores the order of justice. By not allowing the perpetrator to forget the crime

he has committed, the Furies act the work of justice as Eumenides.23

Nevertheless, the

punishment of the perpetrators does not simply respond to an impersonal claim for

justice, but also to the claim of the victims to be recognized.24

In the case of human

rights violations, retributive justice undoubtedly constitutes such a response. The form

of the response, however, raises certain difficulties. When the victims are not alive to

listen to the response of justice for all they have endured, how is the recipient of this

response defined?25

This understanding of justice as a form of debt to those who are

18

Holmes 1995. 19

Nino 1996, 33ff. 20

Weschler 1990, 244. 21

Minow 1998, 25. 22

Jankélévitch 1967, 53; Jankélévitch 1986, 26. 23

Simondon 1982, 223, 227. 24

Williams 1993, 70. 25

Ackerman 1992, 3, 89ff; Elster 1998, 23-7.

11

no longer members of the political community is of particular theoretical interest,26

at

least to the extent that it allows us to reconsider some dimensions of memory beyond

the institutional level. The same moral dimension of memory underscores the

unofficial, public or private, practices and spontaneous manifestations of memory.27

Moreover, the international experience has proven that in cases of mass crimes

committed by a regime, retributive justice is often legitimized through a rhetoric not

limited to the restoration of justice. Especially when the state goes through a phase of

democratic transition, this legitimizing principle often resides in noting the preventive

and didactic scope of the trial. This aiming to the future is thought to provide for a

longer-lasting outcome.28

The didactic scope of such trials as well as their

contribution to the consolidation of the community‟s collective identity resides on the

presumption that collective identity presupposes a collective memory.29

As has been

often noted in the liberal literature, the harvest of the past in the workings of

retributive justice allows societies to consolidate their identity after a period of trauma

and disruption.30

The courtroom becomes the stage of a drama of responsibility and

guilt. This stage is framed by the wider canvass of the political identity of the

community that includes what has been lost and what needs to be restored. The

question however remains compelling: If the perpetrators are responsible for what has

been lost, who is to determine what needs to be restored? Given the immense impact

of the Holocaust meta-narrative on the collective subconscious of western societies,

perhaps we have paid too little attention to the surplus value added by the Nuremberg

trials to the I.C.T.Y. workings and the reasoning of its verdicts, perhaps too little

compared to what has been officially admitted.31

As mentioned above, retributive justice concerns in part the restoration of the

status quo ante. In the case of France, for example, that was the French Republic prior

to Vichy, and in the case of Greece the Hellenic Republic prior to dictatorship. To be

more precise, what is to be remembered and restored is the status quo ante in its

idealized form. What happens though when this idealization is impossible? What

26

Neier, Zalaquett and Michnik 1997, 3. 27

Jankélévitch 1967, 73; Jankélévitch 1986, 60; Shklar 1990, 94-6; Parker 1983, 107. 28

Alfonsín 1996, 16. 29

Osiel 1997, 6. 30

Waldron 1992, 5-6. 31

The I.C.T.Y. officers often expressed their convictions that the Tribunal was repeating the historical

moments of Nuremberg. As Chief Prosecutor Louise Arbour remarked, “collectively we are linked to

Nuremberg. We mention its name every single day.” Hagan 2003, 18. See also Meron 2004; Goldstone

2000.

12

happens when the community‟s past does not involve an order that could function as a

compass for the restorative narrative? In such cases, James Booth suggests that the

community‟s compass for the future is traced in the memory of justice not as lived

experience, but in its platonic sense, as an ideal Form from which the community has

deviated.32

The trial then functions not only as a rupture with the past, but also as the

community‟s first response to the call of justice to denounce this past.33

In the

aftermath of the Holocaust and the Nuremberg trials, Booth‟s suggestion seems, at

first, especially applicable in the former Yugoslav republics, which are devoid of a

liberal democratic memory. However, this point may prove to be equally obscuring or

problematic, at least to the extent that it may even function as the ideological basis for

legitimizing options that clearly stand against international law, such as the so-called

“remedial secession” of Kosovo.

The case of the I.C.T.Y. is of special interest in this respect and pertains to

notable characteristics compared to prior cases of retributive justice.34

Irrespective of

the validity of the legal and political grounding of this critique, the so far workings of

the Tribunal seem to aggravate the already existing tension between the conflicting

communities, instead of facilitating their reconciliation (after all, the latter falls far

beyond its retributive scope). Contrary to the Bosniaks and the Kosovar Albanians,

both Serbs and Croats are negative toward the Tribunal, questioning its impartiality as

well as the legitimating basis of its decisions and orderings.

The way the I.C.T.Y. attempts to balance between the restoration of justice

and its avertive/didactic expedience, between memory‟s call for justice and the

consolidation of legitimacy for the future is of particular interest here. This attempt

was initiated in the first place with the development of a rhetorical transition from

impunity to retribution and the consolidation of the „Rule of Law‟. During Kofi

Annan‟s visit to the I.C.T.Y. on March 3, 1997, the former UN Secretary General

stated that the message sent by the United Nations with the founding of the Tribunal

was that “impunity cannot be tolerated, and will not be. In an interdependent world,

the Rule of the Law must prevail. ... Peace and Justice go beyond the selfish

32

Booth 2001, 780. 33

A similar symbolic process is followed during the revolutionary institution of a community. See Le

Goff 1992, 9; Arendt 1963, 196-7, 207-8. 34

Equally notable is the critique to the role and function of the I.C.T.Y. as extensively discussed in the

literature See, for example, Akhavan 2001; Aldrich 1996; Bassiouni and Manikas 1996; Cisse 1997;

Hagan 2003; Köchler 2003, 166-184; Meernik 2003; Mettraux 2002.

13

interests.”35

A bit earlier, the then President of the Tribunal, Judge Antonio Cassese,

had stated quoting the Nuremberg U.S. Chief Prosecutor: “to let major war criminals

live undisturbed to write their memoirs in peace would mock the dead and make

cynics of the living.”36

The balance between the necessity to solidify the Rule of Law, on the one

hand, and to preserve the memory of the past through retributive justice as a debt to

the victims, on the other, runs through the unofficial document that describes the

functions of the I.C.T.Y. in its web homepage. Given that this document aims at

communicating the mission of the Tribunal to the wider audience, we would say that

its ideological significance almost equals the legal grounding of its very decisions.

There it is noted that by holding senior individuals responsible for the crimes

committed in former Yugoslavia, the I.C.T.Y. is bringing “a sense of justice to the

many thousands of victims across the region”, also guaranteeing that “the suffering of

victims across the former Yugoslavia is acknowledged and not ignored.”37

Besides

grounding retributive justice on the memory of an excruciating past, the same

document notes that the “existence and achievements of the Tribunal have promoted

respect for the Rule of Law across the former Yugoslavia, vital for long-term

stability.”38

The targeted balance between past and future, the ideological grounding of

retributive justice as a moral responsibility to the war victims through the preservation

of memory and as a guarantee for future peace, the rule of law and prosperity, is also

contained in the rhetorical connection between justice and peace. As Judge Cassese

characteristically remarked upon signing the Dayton peace treaty in November 1995:

“Justice is an indispensable ingredient of the process of national reconciliation. It is

essential to the restoration of peaceful and normal relations between people who have

had to live under a reign of terror. It breaks the cycle of violence, hatred and extra-

judicial retribution. Thus Peace and Justice go hand-in-hand.”39

As we saw above, when a democratic and lawful regime is absent from the

community‟s past, the restorative narrative developed in the hearings of a trial traces

its grounding not in the community‟s past, but in Justice itself. When, however, the

35

Cited in U.N. 1997. 36

Cited in ibid. 37

I.C.T.Y. no date. 38

Ibid. 39

Cited in U.N. 1997.

14

content of justice is not formed through a process of platonic remembrance that comes

from within the community itself, but is instead externally introduced or imposed then

no institutional guarantees could remove the objections raised by the community that

feels it has been unfairly treated by the process. Even when individuals are trialed on

the ground of their individual responsibility, even when guilt is individuated, as in the

case of the I.C.T.Y., the respective communities never stop considering each other as

collectively responsible for all the sufferings they have endured. When democratic

memory is absent, retributive justice normally functions as a process of community‟s

rupture with its past. Nevertheless, in the case of the former Yugoslavia, the trial

seems to reinforce the rupture between the respective communities.

Truth

In cases of regime change, the communities marked by a violent past do not only ask

for the punishment of the perpetrators through restorative justice. As we have seen

above, memory and punishment are closely linked to each other.40

Nevertheless,

neither is the claim for punishment solely expressed through judicial institutions, nor

is retribution the only form of punishment that resists forgetting. Pain, repentance,

revenge, they all resist the possibility of erasing the past suffering from individual and

collective memory. Judicial retribution may mitigate the pain and temper the anger

caused by suffering. Repentance may even soothe the wrath of justice. Revenge,

however, is associated with judicial retribution in a paradoxical form. Whereas the

latter seeks to vanquish the passion of revenge, in the minds of those who suffered, it

may be seen as serving the same ends with revenge (retribution and remembrance) but

in a rational and institutional manner.41

It may seem that the claim to preserve the memory of evil, to remember the

wrongs done and those who suffered them, is solely connected to retribution, from its

more passionate to its more rational and institutional forms, from revenge to judicial

retribution. However, the memory of evil is by definition connected to truth as well.

According to Nicole Loraux‟s reminder of the self-evident,42

for the Ancients, truth

(alētheia) was the opposite of forgetfulness (lēthē) and hence a synonym to non-

forgetting (a-lētheia = non-forgetting). In other words, what counts as true for a

40

Minow 1998, 14. 41

Shklar 1990, 93-4. 42

Loraux 1988, 37.

15

community is what has already resisted the processes of forgetting.43

No justice is

served if the truth is not served in the first place. No court can reach a just verdict if

the truth is not first disclosed. It is the work of justice to bring truth to light, to

disclose the injustice made, the names of the victims and of the perpetrators and to

preserve their memory alive. Therefore, forgetting does not only deviate from truth

but also from justice.44

As a corollary, a forgetful community does not only live in

falsity, but also in injustice.

In the face of the unspeakable, humanity has uttered the promise to preserve

this triptych of memory, truth and justice.45

And yet, in many instances post-

Auschwitz, the same humanity has tragically conflated the unspeakable of the horrors

with the undeclared of the crimes. In such cases, historical revisionism of the

Holocaust has come to function as hubris. Denying the truth of the mass crimes and of

their victims is no different from erasing them from memory. They both sentence the

victims to a second death.46

Hence, justice is served not only though the retribution of

the Nuremberg Trials, but also through the preservation of the memory of both the

crimes and the victims alive.47

By making present what is past, memory connects

what has been lost with what remains here with us.48

The manifestations of our abiding to this moral obligation to the dead are

many, ranging from memory books and museums to more institutional responses,

such as in the workings of truth and reconciliation commissions.49

Nevertheless, we

still fail to fully comprehend the very bond that gives rise to our fidelity to the dead.50

The customary conceptualization of our ethico-political obligations is based on the

obligations we recognize toward those who live with us in the political life of an

organized community. Even more, we fail to fully grasp the inherent dynamic of this

obligation that plays a vital role in organizing our present and future actions. The

question however remains compelling: Is it enough to merely keep the past alive

under the light of remembrance? Is justice served only by non-forgetting? The

Ancients‟ answer is negative. In Sophocles‟ tragedy, Electra and her brother embody

43

Detienne 1994, 69-70, 76. 44

Ibid, 6; Yerushalmi 1988, 20. 45

See, for example, Douglas 2001; LaCapra 1998; LaCapra 1994; Nora 1996-1998; Winter and Sivan

1999. 46

Simondon 1982, 124. See also Verdery 1999. 47

Kugelmass and Boyarin 1998, 192; Semprun 1995, 91; Lapierre 1989, 10; Milosz 1991, 281. 48

Carson 1999, 38. 49

Huyse 1995, 52-53. 50

Raczymow 1979, 106.

16

all three aspects of justice: truth, memory and retribution. They are not simply the

living carriers of truth and memory of the crimes committed against their father. They

are also the living instruments of punishment. In that sense, any reservation against

the adequacy of truth commissions or similar strategies to fully cope alone with an

excruciating past should come as no surprise. After all, truth commissions aim

primarily at the disclosure of truth rather than the punishment of the perpetrators,

while amnesty is offered to help secure integration in the community and encourage

those guilty to confess their crimes.51

Truth alone cannot, however, function as a

substitute for judicial retribution and punishment.52

Irrespective of whether judicial retribution and the punishment of those guilty

may truly function as a form of catharsis, it is still a fact that the form of justice called

for by memory and that served by judicial retribution remain the two sides of the same

coin. We know from Electra that truth alone cannot exhaust the content of justice.

Therefore, when the strategy of truth commissions is followed alone, the community

concedes to sacrifice retribution in the name of truth and reconciliation. This sacrifice

explains the heavy ethical burden that such commissions bear, when judicial

retribution is not opted as a parallel strategy.53

In former Yugoslavia, however, where both strategies of judicial retribution

and truth disclosure have been followed, catharsis remains too distant. Indeed,

parallel to the workings of the I.C.T.Y. there have been attempted the establishment of

three official commissions aiming at truth disclosure. The first was the Commission of

the then Federal Republic of Yugoslavia. It was established by a decision of the then-

President Vojislav Kostunica, but it lacked any support from human rights

organizations. The workings of this Commission lasted for only one year (until July

2003), without however producing any relevant report. The second was the

Commission for Investigating the Events in and around Srebrenica from 10 to 19 July

1995. It was set up by the Government of the Republic of Srpska in December 2003

as a response to the intense pressure exerted by the international community. This was

the only truth commission that fulfilled its mandate with a relative success. However,

its findings were criticized by both the Bosnian Serb and Bosniak communities.

Whereas the former claimed that the report was inaccurate and produced under

51

Soyinka 1999, 13. See also Holiday 1998, 47. 52

Soyinka 1999, 30-1, 36, 80. 53

Rotberg and Thompson 2000.

17

international pressure, the latter criticized the report for not admitting that the Serbs

had committed genocide. The third attempt was the Commission for Establishing the

Facts on Sufferings of Serbs, Croats, Bosniaks, Jews and Others in Sarajevo from

1992 to 1995, set up by the Council of Ministers of Bosnia and Herzegovina in June

2006. The commission has not become operational to date, mostly due to internal

discord as to whether its workings should include fact-finding about damage inflicted

on public and private property.

At the unofficial level, perhaps the most notable attempt to establish a truth

commission should be traced at the initiative of three organizations working on

documenting war crimes – namely, the Humanitarian Law Center from Serbia,

Research and Documentation Center from Bosnia and Herzegovina and Documenta

from Croatia – to establish the so-called Regional Commission (RECOM). Between

May 2006 and May 2008, the initiators of this regional approach, also addressed as

the Coalition for RECOM, organized regional forums and group consultations with

the local communities to establish a regional commission on truth-seeking and truth-

telling on war crimes and other grave human rights violations in relation to armed

conflicts. Once the process is complete, the final proposal to establish RECOM is

expected to be submitted to the governments in the region for consideration and

approval in late 2010. Concerns have been already expressed as to whether regional

governments would eventually approve the final proposal, since establishing the facts

may jeopardize the official historical narratives upon which current political elites

draw their power.

The above mentioned attempts at both the official and the unofficial levels

indicate the difficulties involved in establishing a truth commission on the Yugoslav

wars. On the one hand, governments in the region have been accused of either

exaggerating facts and the numbers of victims or concealing too much not to upset the

established national histories. On the other hand, civil society initiatives are treated

with reserve and are criticized as serving the interests of their western sponsors,

whereas individual activists on human rights issues are often accused as traitors or

enemies of the nation. The true challenge for the former Yugoslav republics remains

how to set a truth finding mechanism that would remain credible in the whole former

Yugoslav sway.

This challenge is particularly evident in the case of Bosnia and Herzegovina.

The application of the liberal principles and policies introduced with the Dayton

18

Agreement has eventually proven to encourage rather than mediate the estrangement

between the three constituent ethnicities, blocking the cultural exchange between

them. The paradox is hard to pass unnoticed. The same liberal democratic principles

that were followed in almost all institutional attempts to promote peaceful coexistence

and democratization in the country, in order to avert the danger of the hegemonic

prepotency of a dominant national identity, eventually came to encourage the

adoption of policies of impotent protective isolationism by the respective ethnic

communities. As long as there exist more than one estranged communities in the

country, there will persist more than one truths.

Forgetting and Forgiving

The logic of punishment stands opposed to all those practices that seek to moderate or

revert the workings of judicial retribution, such as mercy and forgiveness. Whereas

the former lessens or precludes punishment and is not strange to judicial

proceedings,54

the latter reverses both the order and the logic of retribution calling for

a different relating of the victims with the perpetrators.55

Whereas the former is

expressed through the institutions of justice, the latter concerns a clearly subjective

process. This intrinsically subjective and esoteric character of forgiveness raises some

difficulties once we move to the social plane of analysis discussing similar options at

the community or inter-communal level. The option of forgiveness first presupposes

that the members of a community acknowledge that any event, in which the

community takes pride, is indispensably connected to the suffering that the same

event has caused to the members of another community. Suffering is always

manifested twice: first as suffering caused and then as suffering endured. Forgiveness

reverses this order of sequence: “It is necessary this time to proceed from the

suffering of others; imagining the suffering of others before re-examining one‟s

own.”56

The value and the power of forgiveness lie in its therapeutic function not only

for the perpetrators, but also for the victims themselves.57

As Paul Ricoeur has noted, it is impossible to contain forgiveness in the usual

categories founded upon the principles of retribution and reciprocity. The order of

54

Murphy 1988b. 55

Minow 1998, 15; Murphy 1988a, 21, 24. 56

Ricoeur 1996, 9 (emphasis in original). 57

Ricoeur 1998, 125; Ricoeur 2000a, 593-656.

19

forgiveness, “the order of philanthropy” surpasses the order of morality. Forgiveness

lifts “the burden of guilt which paralyzes the relations between individuals who are

acting out and suffering their own history. It does not abolish the debt insofar as we

are and remain the inheritors of the past, but lifts the pain of the debt.”58

It is a gift

offered without one‟s waiting for anything in return (anti-doron). Surpassing the rules

of political life or institutional regulations, it touches the spiritual elevation of human

existence.

Given that the sphere of politics is based on the principles of reciprocity and

retribution, one could suggest that forgiveness transfers us to a supra-political sphere

existing beyond the order of morality. However, a closer look at political practice may

convince us that the element of forgiveness is often included in the practices of all

organized political communities, such as in the often made pleas for forgiveness or in

the regulations and functions of a penal system in a state (e.g. pardon). Just as pardon

outreaches the law of the State, forgiveness outreaches morality. Forgiveness springs

from an “economy of the gift” that goes against the logic of retribution directing

judicial justice.59

Paraphrasing Ricoeur, I would say that forgiveness is not simply an

extra-judicial, but an extra-moral value.60

The call for forgiveness does not necessarily

entail a redesigning of politics and justice. To the contrary, as already noted in the

introduction, the challenge of forgiveness and the difficulties of its judicial or semi-

judicial expressions in political life allow us to reconsider the recognized limits of

politics and justice. Due to its restorative powers the call for forgiveness is often

expressed during periods of regime change.61

Its implicit difficulties, however, persist,

when forgiveness becomes a strategy opted at the level of politics and justice.62

Nevertheless, it should be noted here that forgiveness is not simply a practice

that could be easily or light-heartedly followed. The dangers lurking within the

institutional expressions of forgiveness are two. The first danger concerns the very

right to forgive. The only one that could rightfully forgive is the victim and no one

could rightfully expect to be forgiven. The way, however, we relate to forgiveness is

in practice the way we respond to a call for forgiveness. This is by definition a

difficult response, at least to the extent that it often involves a response to the

58

Ricoeur 1996, 10. 59

Ricoeur 2000b, 144. 60

Daunhauer 2002; Daunhauer 1998, 264-5. 61

Sachs 2000, 223-4. 62

See Murphy and Hampton 1988; Gutmann and Thompson 2000; Minow 1998.

20

unforgivable. In such a case, forgiveness is and should remain impossible. As Ricoeur

has nicely put it, “there is a time for the unforgivable and a time for forgiveness”.63

The second danger to be averted concerns the possible confusion between forgiving

and forgetting, two categories that have to remain mutually exclusive. To forgive

presupposes that one has not forgotten. The danger to be averted, according to

Jankélévitch, is a “forgetful forgiveness”.64

To the contrary, as suggested above,

forgiveness presupposes an unbroken relation with the past through memory. This

relation has to remain intact and active. In that sense, forgiveness is a “form of

therapy of memory, the end of mourning. [It] gives memory a future”.65

However, the strategy of collective forgetting has been often opted at the plane

of institutions, especially when the burden of the past is so heavy that stands as an

obstacle to peaceful coexistence or to the perseverance of the community itself. The

intrinsic difficulties of forgiveness do not often leave any options to the community

other than collective forgetfulness, especially when the preservation of memory may

lead to nostalgia, sorrow and revenge.66

In those cases, collective amnesia,

commanded forgetting or manipulated memory (another version of forgetting) are

premised as imperative strategies in order to limit the negative consequences of the

trauma caused by the past suffering.67

In contrast to forgiveness, forgetfulness

promises to acquit us from the bondage of an afflictive memory.

Those internal contradictions are evident in the Ancients‟ understanding of

memory as Mnēmosynē, the titaness personifying memory, who (almost

paradoxically) allows us to forget an excruciating past.68

By definition, the one who is

subjugated by the memory of evil, the mnēsikakos, is not only resentful and

unforgiving, but also vengeful and vindictive. By extension, to remember evil

(mnēsikakein) becomes a precondition of revenge and, hence, of new evil; reversely,

not to remember evil (mē mnēsikakein) becomes a precondition of unity and peace at

the social plane. This is what the Athenians had in mind when democracy was

restored after the dictatorship of the Thirty with the reconciliation agreement of 403-

402 B.C., and amnesty was proclaimed to bring an end to mnēsikakein.69

The

63

Ricoeur 1996, 11. 64

Jankélévitch 1967. 65

Ricoeur 2000b, 144. 66

See Jankélévitch 1974. 67

See Caruth 1995; Caruth 1996. 68

Hesiod 1983, lines 54-5. Simondon 1982, 141; Vernant 1996, 117. 69

Aristotle 1952, section xxxix. See also Elster 1998, 9-13. Loening 1987, 21; Loraux 1997, 174.

21

Athenians were convinced that neither peace, nor unity, nor democracy could be

restored and endure in the polis, without first agreeing to collectively forget the evils

of its dictatorial past.70

This political dimension of collective forgetting had been

already recognized in Homer‟s Ulysses. Upon the assassination of Penelope‟s suitors,

Zeus urges Athena to make the relatives of the victims forget the death of their

brothers and sons. This would allow them to befriend each other again, as well as

acquire both wealth and peace. Forgetting is hence proposed as a precondition not

only of personal healing, but also of individual prosperity and social longevity.71

Similarly, in Aeschylus‟ Eumenides, Athena has to soothe the Furies, who still seek to

revenge Clytemnestra‟s murder against her son and killer Orestes even after his being

acquitted by the jury, and convince them not to bring conflict and death to the city.72

By virtue of its implicit rupture with the past, forgetting as a political or

judicial option may function as a tool for pacification and reconciliation.73

As we have

seen, in the historically and culturally specific moment of Athens‟ transition to

democratic rule, its citizens valued peace, unity and stability as more important goods

for the polis compared to retribution. Of course, what was questioned in this case and

what is normally questioned in similar cases is not the legitimizing basis of

retribution, but the very choice between peace and justice, when the two cannot

coincide. Forgetting, therefore, appears as serving the fundamental political need of

bringing conflict to an end, especially when the community has survived an

excruciating political experience. After all, as Ernest Renan has suggested, nations are

not founded only on those things remembered, but also on those their members are

willing to forget.74

In that sense, the amnesty proclaimed by the Athenians on the eve of

democratic rule should be seen less as a form of collective forgiving, than as a form of

collective forgetting in the name of peace and prosperity. For the Ancients, after all,

amnēstia meant the forgetfulness of past wrongs. Its juridico-political connotations

were much later added.75

Writing in difficult times, Bacon was one of the first to use

the term as pertaining to reconciliation: for the community to endure there has to be

agreed that both the community itself and its law have to forget, to “pass over that

70

Loraux 1988, 23, 30; Loraux 1997, 38. 71

Homer 1977, Book 24, lines 482-6. See also Loraux 1988, 33. 72

Aeschylus 1971, lines 825ff., 860ff., 975. See also Vidal-Naquet 1995, 266-7. 73

Simondon 1982, 45; Bacon 2008. 74

Renan 1992, 41. 75

Loening 1987. 21. See also Loraux 1988a, 23-4.

22

which is past”.76

As a juridico-political option, amnesty has been historically preferred

especially when political unity was at stake.77

Combining informal strategies of

collective forgetting with certain reconciliatory elements, the scope of amnesia has

proven to be much broader but equally important. To be precise, amnesia is hardly

ever a memory vacuum. Instead of merely asking for certain painful memories to be

deleted, it almost always involves the reconstruction of the past in ways that bridge

the temporal gaps and allow the perseverance of the community. Collaboration with

the enemy or a totalitarian and ruthless regime is hence often represented as a

parenthesis or an exception to the rule of heroic resistance.78

It is almost a truism to suggest that the combination of amnesty with amnesia

may function as a strategy serving diverse ends, ranging from political unity to the

impunity of the perpetrators or the distortion of the collective remembrance of the

past. Never fully escaping the power configurations in the respective community, the

combination of amnesty with amnesia may even come to serve the short-sighted

expediencies of the elites controlling and orchestrating the ideological instruments of

memory.79

This, however, should not lead us to conclude that remembering and

forgetting are mere arbitrary artifacts. As we have seen, memory‟s call for justice is a

manifestation of our fidelity to the dead, to those who are no longer members of the

community. Amnesty, to the contrary, redirects our ethical responsibility with respect

to both memory and justice toward the present and the future of the community. When

the community goes through a transition phase, as in the Yugoslav successor states,

the promise for a new, better future often calls for a sacrifice of memory and justice in

the altar of the practical value of the opted policies.80

In such cases, the rupture

between the community‟s past and its future caused by amnesty is less the result of

the community‟s avoidance to ethically and legally evaluate the wrongs of the past,

than a compulsory retreat of the claim to remembrance and justice in the name of a

future imperiled by the sterile adherence to the sufferings of the past and the repetition

of violence.

The etymological relation between amnesty (amnēstia) and amnesia (amnēsia)

is more than evident. Nevertheless, these terms have not always operated as

76

Bacon 2008b. 77

Typical examples include the amnesty granted in France after the defeat of the Paris Commune or in

post WWII-Europe. See Gacon 1994, 104; Rousso 1990, 67-8, 145-6. 78

See also Judt 2000, 299; Lagrou 2000. 79

Finkielkraut 2000, 37-52, 135-6; See also Todorov 1995. 80

Waldron 1992, 4, 27.

23

synonyms. In more recent cases, where amnesty has been opted as a strategy of

coping with an excruciating past, it has been often distinguished from amnesia.

During the transition of the post-communist countries in Central and Eastern Europe

(CEE), for example, amnesty was presented as a non-retributive or non-revengeful

option of liberal democracy. Hence the distinction in the workings of memory at the

levels of the community and the law: whereas the law is asked to “forget”, the

community has the right and the obligation to remember. “Amnesty – yes; amnesia –

no” has been the dominant maxim in this process. Michnik has pointed the difficulties

of fully overcoming the past evil of communist rule through this dual imperative that

consigns the crimes to legal oblivion and social remembrance.81

Such an analysis

seems to echo the older pressing question set by the Holocaust legacy:82

Does this

non-retributive strategy allow the society to fully overcome the evil past? Is justice

truly served? In my view, this non-vengeful face of the new liberal democratic rule

pertains to an impalpable form of cynicism. Whereas mercy is exhausted at the level

of juridico-political institutions, celebrating the new ethos of liberal democracy,

mnēsikakein is preserved in society as a constant reminder of what needs to be

avoided in the future but also as something that already belongs to the past as a

museum exhibit.

Although the law has “forgotten”, the new liberal democratic states are willing

to orchestrate or manage this memory of evil to serve new and diverse aims by

developing marketing strategies of the communist heritage. These strategies may be

seen as a part of a wider process of substantiating the nation through the

“preservation” of its past.83

With a few notable exceptions, when the community‟s

encounter with its communist past involves a painful encounter with extreme

violence, most of the CEE states have followed similar patterns of museum

management of their communist past, which allowed the development of concrete

state strategies and business initiatives.84

Those strategies and initiatives share the

following two characteristics: a) the pursuit of a narrative substantialization of the

81

Michnik 1997. 82

Jankélévitch 1986, 61. 83

The respective literature in the humanities is both rich and fascinating. See for example Ashworth

and Larkham 1994; Munasinghe 2005; Grzymała-Busse 2002; Verdery 1999; May and Thrift 2001;

Tismaneanu 1998. 84

Romania‟s “unwanted past” stands as a typical exception to this rule. See Light and Phinnemore

2000. Nevertheless, this by no means implies that the difficulty of coping with the excruciating heritage

of the Ceausescu regime has altogether blocked the Romanian state from following similar strategies of

heritage marketing for commercial and touristic purposes.

24

nation through establishing a linear continuity of a glorious, progressive, Christian,

anti-communist and often European national past – a process which has been often

marked by a certain shift from the political-ideological to the national terrain, and b)

the marketing of the national (and communist) heritage through the development of

novice business initiatives of liberal capitalist growth and profitability. The Museums

and Memorials of Communism spread all over CEE85

become the sites of the parallel

development and the dialectical interaction between the above strategies and

initiatives, while post-communist states are often willing to assume both roles,

marketing their own national and politico-ideological heritage.

As we have seen in the first section, the former Yugoslav republics pertain to

particular complexities with respect to how their legacies are represented in the newly

independent states. The Yugoslav wars in the 1990s have further strengthened the

implicit difficulties at least to the extent that their coping with the past was

intrinsically related to the legitimization of their existence as independent states.

Paradoxically enough, and in contrast to what has been the case in other post-

communist countries of CEE, those difficulties concerned almost exclusively what

preceded and followed the communist period of Tito‟s rule. The workings of the

I.C.T.Y. have allowed no room for even debating the possibility of amnesty in former

Yugoslavia. This has not silenced, however, the debates on remembering and

forgetting.

Although amnesty has never been seriously considered as an alternative to

retribution for the crimes committed during the Yugoslav wars, it offers an interesting

pretext for critically evaluating the workings of judicial retribution with respect to

memory and justice. It has been suggested that amnesty and, in general, the remedy of

past grievances may be an ideal option in cases of democratic transition or

restoration.86

In that sense, developing a sense of trust and tolerance is of fundamental

importance to the consolidation of democracy, which may be threatened by policy

options that insist on the disclosure and legal prosecution of the perpetrators. Such

policy options may almost unavoidably lead to a segregation of the people into groups

of innocent victims and evil perpetrators. In their most pathological forms, they may

85

Indicative in this respect are numerous memorials, parks and museums all over CEE, such as the

Szoborpark (Statue Park) in Hungary, the Grūtas Park in Lithuania (also known as Stalin’s World), the

Muzeon Park of Arts (also known as the Fallen Monument Park), the Terror Háza (House of Terror) in

Budapest, etc.. 86

Minow 1998, 14.

25

eventually lead to the unhistorical victimization of one group with two significant

political implications, already evident in former Yugoslavia. On the one hand, this

may reinforce social disintegration within the Yugoslav successor states, at least to the

extent that those ethnically associated with the perpetrators will still bear the mark of

guilt in the new political arrangement, which may be even thought to be “unfairly”

imposed by the West. Admittedly, this possibility falls far beyond the inclusive scope

that the new democratic rule is called to serve.87

On the other hand, this victimization

process may favor post-conflict political arrangements that still remain ethnically

divisive. A closer look at the postwar political arrangements implemented in Bosnia

and Herzegovina, FYR of Macedonia and Kosovo reflect the Western schematization

and rationalization of the Yugoslav wars in terms other than those corresponding to

their specificities, eventually allowing, intensifying and reproducing estrangement

between the conflicting communities.

Furthermore, because of its intrinsic relation to collective remembering and

forgetting in the name of a desired or promised future, the category of amnesty allows

us to rethink the possibility of irrevocably precluding the return of the claim to justice

as a moral imperative.88

With amnesty we eventually face the problem of subjectivity:

Who has the right to forgive and/or forget?89

Amnesty may be a manifestation of

mercy and a call to oblivion, but it can neither delete the crime, nor preclude the

revival of the past and the return of its remembrance. As Ricoeur has noted discussing

Sophocles‟ Eumenides, the Furies may be sleeping at present, but they may wake

up.90

After all, no community can live in oblivion forever.91

This brings forth the

problem of the temporal range of amnesty and amnesia. Moreover, it brings forth the

problem of the longevity of all those political arrangements, which albeit distant as

options from amnesty, share similar promises and ask for similar sacrifices. For the

people in FYR of Macedonia, for example, the dream of European integration, the

promises of development, prosperity and progress may all suffice for now as powerful

motivations to override the difficulties of inter-communal coexistence in the country,

to forget the pain caused by internal strives and overcome the “Balkan” past. Nothing

could guarantee, however, that the Ohrid Framework Agreement will make the Furies

87

Ackerman 1992, 3, 69-71, 88. See also Nino 1996, 128ff. 88

Michnik and Havel 1993, 25; Pisar 1986, 72. 89

Ertel 1993, 121. 90

Hegel 1967, 247; Semprun 1994, 297. 91

Stora 1991, 319.

26

sleep forever. Especially when the promise for the future turns into everyday reality,

fully disclosing its difficulties or impasses, then the future generations could be hardly

convinced that the price was worth-paid by their predecessors. The price of forgetting

is heavy and never prepaid in full.

Conclusion: The Limits of Institutions

The preceding paragraphs analyzed the relation between memory and justice within

the scope of three different categories: judicial retribution and punishment, truth

disclosure, amnesia and amnesty. In this concluding section, I will summarize the

limits of the juridico-political institutions in their responding to memory‟s call for

justice. In other words, could this claim for justice be fully served through

institutional processes?

It remains a fact that even when justice is institutionally served through the

judicial retribution and the punishment of the perpetrators, even when such

institutional processes complete their work, a sense of the unaccomplished of justice

may persist.92

This sense may be caused by the fact that the evaluation of the

workings of such institutions is often guided by the human passion for revenge, which

could be hardly satisfied at the plane of institutions.93

In part, this sense may be

caused by the fact that judicial retribution may not fully complete its mission, as in the

case when some of those guilty escape justice.94

In all those cases, the debt of memory is persistently manifested in parallel or

even after the work of judicial retribution is over. As we have seen, these

manifestations include, among others, the raising of memorials, statues or museums

dedicated to the victims of mass crimes. Thus, the community aims to leave behind

the stigma of an excruciating past, even as a collective memory.95

In a sense,

therefore, those quasi- or non-institutional manifestations of memory do not simply

help preserve the remembrance of the past, but also function in a redemptory manner

for the community itself, which now feels that it has paid its moral debt to the victims

of the past. The crime is no longer haunting the community‟s everydayness. It

becomes historicized.

92

See, for example, Finkielkraut 1989, 12-3. 93

Shklar 1990, 93-4. 94

Judt 2000, 308; Rousso 1990, 18. 95

Young 1993, 28-37.

27

Why does the claim for justice remain alive, even after the work of judicial

retribution is complete? Beyond the legal particularities or procedural difficulties, this

incompleteness is relevant both to the way we conceptualize guilt,96

and to the

irrevocability of court decisions. The trials of the perpetrators of mass crimes must

inescapably look to individual accountability.97

For example, the I.C.T.Y. has to

identify guilt only to those held to be the direct authors of the crimes, thus averting the

danger of holding accountable the whole community that collaborated with or

supported the regime that ordered those crimes or even silently acquiesced to their

perpetration. Similar was the legal outcome of the Nuremberg trials with respect to

the collective guilt of the German people.98

In other words, the investigation of guilt is

concentrated to the specific criminal acts of specific individuals.99

Nevertheless, what

constitutes a manifestation of our legal civilization is often incapable to fully satisfy

memory‟s claim for justice. When memory calls for justice, it often demands the

recognition of a responsibility that includes, but also reaches beyond individual

accountability. It demands that the members of the political community recognize a

form of co-responsibility, even if they are legally unaccountable. Evidently, this

implies neither holding a whole people accountable, nor its incrimination. To the

contrary, it implies that when memory calls for justice it calls for a sense of shame

(onēdos) that springs not from (co-)responsibility but from belongingness to a

community that was even indirectly associated with the perpetration of mass

crimes.100

Memory as shame responds to the claim of memory for justice surpassing

guilt and legal accountability. In that sense, the incompleteness we addressed above

depends less on whether judicial retribution has completed its work by bringing to

trial all those alleged to be the direct authors of mass crimes, than on the limited

capacity of institutional justice to fully remedy the traumas in the community‟s

memory of an excruciating past. Evidently, in the case of former Yugoslavia, the

retributive objective of the I.C.T.Y. will never be fully achieved without the arrest and

trial of the remaining fugitives, Ratko Mladić and Goran Hadžić. However, peace in

the region will not be cemented before the memory‟s claim for justice of every single

96

Meierhenrich 2006. 97

Cohen 1995, 47; Osiel 1997, 61; French 1984; Williams 1993, 63-5. 98

Jaspers 1978, 98-100. 99

French 1992, 65-6. 100

Morris 1976, 135; Williams 1993, 80.

28

community in the region offers hospitality to the memories of the other communities

and their own claims to justice.

Moreover, the truth revealed in the courtroom of a trial could not be compared

to the one that truth and reconciliation commissions aim to expose, to help preserve

the memory of the crimes and the perpetrators, to save the victims of mass crimes

from the second death of collective oblivion.101

This may be partly explained by the

difference between the objective representation of the past attempted during a trial

and the memory of a witness or of the victim imbibed by the passion of revenge

and/or the emotional content of a trauma.102

In any case, the truth of memory, the

truth of witnessing is distant from the truth of the law and of history,103

at least to the

extent that the former does not aim at the attribution of guilt or at the investigation of

a crime, but foremost at the re-accession of the victims into the narrative identity and

collective memory of the community. The question is less the (historical) explanation

or the (legal) definition of responsibility, than the restoration of the unity of a

fragmented community.

The international experience has so far proven that judicial or semi-judicial

retribution does not succeed in permanently healing the woods of an excruciating past,

definitely closing the circle of violence or fully satisfying memory‟s claim for justice.

The former Yugoslav republics have not escaped this rule. As we have seen,

memory‟s call for justice is expressed in numerous ways. In the context of the law, it

may be expressed as retribution and punishment, as truth disclosure and witnessing, or

as collective amnesia. Those manifestations dictated by different but complementary

needs: to pay the moral debt to the victims by punishing the perpetrators, to preserve

justice, to save the victims from the second death of oblivion, to allow the goods of

the future to prevail over the sufferings of the past. All those manifestations reveal a

kinship between memory and justice. At the same time, though, they evince the limits

of the institutions that express them.

Memory‟s claim for justice demands more than a tribunal or a truth

commission can deliver. Freed from the necessity to define and identify individual

guilt, the justice called for by memory could not be simply satisfied by the

101

Yerushalmi 1988, 16. 102

Tillion 1988, 12, 306. 103

Bédarida 1993, 7.

29

punishment of the perpetrators.104

Whereas judicial retribution aims to irreversibly

close the cases of a painful past, to disassociate the past from the present and future,

memory‟s claim for justice denies the filing of the past. To the contrary, it aims at

drawing up the past and preserving it in the present, in order to fulfill the moral debt

to the dead and reaffirm the permanent relation that connects us with them. As we

have seen, three are the faces of the justice called for by memory, which revel the

limits of our institutions: a) the claim to recognize a wider co-responsibility that lasts

in time and is transmitted to the future generations as shame, b) the claim to

disassociate the crime from the face of the direct authors of the crimes, so that the

crime will be constantly condemned even after the end of the trial, c) the elevation of

the justice called for by memory to a central ingredient of the identity and the

longevity of a community.

In the previous sections, our analysis started with the claim that the form of

justice demanded by memory first presupposes averting the danger of forgetting the

past crimes and their victims. The paper suggested that memory‟s call for justice

dictates, but also surpasses a series of institutional practices of judicature, disclosing

their imperfect and fragmentary scope. The strong bond of memory with justice was

not discussed as an obsession or as a syndrome, but as one of the faces of justice

itself, which in its ideal form exceeds the limits of institutions, aiming at preserving

the memory of the perpetrators, their crimes and their victims alive.

104

Soyinka 1999, 14.

30

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