Proposing a new framework

Abstract

The Chinese experience following the Cultural Revolution (circa. 1966–1976) in adjusting from a period of great human suffering and civil chaos to one of relative normalcy deserves placement within the larger transitional justice literature. As an early example of conflict transformation and reconciliation that restored legitimacy to the Chinese Communist Party (CCP) through not only substantive reforms, but also history revision, controlled outlets for communal venting, and the scapegoating of outgoing officials, the Chinese case challenges scholarly assumptions that competent transition policies must be rooted exclusively in truth and justice. This article thus concludes with a new approach for evaluating reconciliation processes that accounts for the disparate array of national experiences including, amongst others, Germany, Rwanda, South Africa, Guatemala, China, Ecuador, and Spain. Such modeling is necessary to press the transitional justice literature toward a more theoretically driven evaluation of conflict transformation and reconciliation policies.

Keywords

China Cultural Revolution reconciliation transitional justice

The decade of the Cultural Revolution (1966–1976), also known as the “Ten Lost Years,” scarred the collective memory of the Chinese people (Fairbank et al., 1989: 971). During this reign of terror, Chairman Mao Zedong and his allies purged huge numbers of individuals from within the Chinese Communist Party (CCP), blaming them for his earlier failed experiment in communist agricultural and industrial mysticism called the Great Leap Forward (1958–1960) (Fairbank and Goldman, 1998: 392).¹ Only with Mao Zedong’s death in 1976 and the successful assumption of control by Deng Xiaoping and his allies in 1978 did a retreat from extremism become possible. Yet, the task awaiting the new government was monumental as the shattered nation remained afflicted with bitter memories and deep distrust of the CCP. Thus, the newly constituted government instituted a multi-faceted transitioning process to begin the urgently needed reconciliation with its beleaguered citizenry. After analyzing this process with particular emphasis on the trial of the Lin Biao and Jiang Qing Counter-Revolutionary Cliques, China’s experiences are located within a larger multinational framework for evaluating transitional justice processes. “Justice” is thus broadly construed as referring to government policies from retributive and restorative justice, to procedural justice and/or justice as a matter of right. Such modeling is necessary to press the transitional justice literature toward a more theoretically driven evaluation of conflict transformation and reconciliation policies.

The precipitating events, concomitant violations, and parties involved in the Cultural Revolution

The Cultural Revolution ranks among one of the great tragedies in the recent annals of human history. During the decade of 1966–1976, the Chinese government very conservatively reported that approximately 34,800 people were killed while an additional 729,511 individuals were “ruthlessly persecuted” through means such as torture, intimidation and interrogation, home invasions, property destruction, and imprisonment (Bonava, 1984: 179; Fei, 1981: 6–8). Today, the conservative estimate of lives lost is half a million (Hundt, 2006: 138). These massive violations of human rights were perpetrated under the banner of cleansing and reinvigorating the CCP by purging Mao Zedong’s top level political competitors who he painted as “ox demons and venomous spirits” (Deng, 2005: 20).²

To bring about this new revolution, Mao first called upon his powerful persona as a semi-legendary “culture hero”³ in 1965 to encourage young people from all backgrounds to organize themselves into units called Red Guards (Fairbank and Goldman, 1998: 392). Through a process of deliberate escalation including “a succession of nine mass rallies” in the capitol involving approximately thirteen million participants and an incessant media campaign, Mao exhorted these faithful youths to attack the “‘four olds’ (old ideology, thought, habits, and customs)” (Fairbank, 1983: 437). The first victims were thus found “among the educated upper class … who were … attacked for possessing foreign books or clothing or even foreign-style haircuts” (Fairbank, 1983: 437). In 1967, Mao ratcheted up the frenzy an additional notch targeting “the party structure itself” and inciting a broader spectrum of the masses including industrial workers (Fairbank, 1983: 437). As John E Schrecker (1991: 182) explains, “… the followers of the Cultural Revolution began widespread abuse of party members, intellectuals, and social leaders of all sorts. It was a time of humiliation, beatings, killings, and suicides … Ever more people were sent to prisons and work camps.”⁴ Thus, the popular reference to this dark decade as the Ten Lost Years is particularly apt (Fairbank et al., 1989: 971).

The transitioning process: From extremism to normalcy

While officially ending in 1969, the abuses of the Cultural Revolution continued to haunt China until Mao’s death in 1976 causing a period of economic stagnation, educational bankruptcy, and low agricultural yields (Fairbank et al., 1989: 967–980). Although slackening of this extremism finally began under the transitional leadership of Hua Guofeng, a vice-premier and minister of public security, it did not reach a full reformist fervor until Deng Xiaoping wrested control of the CCP in 1978 from Mao’s remaining supporters (Schrecker, 1991: 185).

Despite the enormity of the tasks he faced, Deng used many strategies to instigate the transitioning process from terror to normalcy (Fairbank et al., 1989: 974–985). Some of the methods employed by Deng between 1976 and 1981 include “a state-run media campaign, a nationwide ‘wound literature,’ a de-Maoification campaign, the trial [of Madame Mao and her associates] as a ‘formal finale,’ and a definitive Party history on the years 1949 to 1981” (Farquhar and Berry, 2003: 130). All of these tactics were aimed at the same goal, viz., “history-fiction” which amounted to the constructive destruction through narratives and counternarratives of the cultural memory in China (Farquhar and Berry, 2003: 120). The following analyzes these four transitioning processes while comparing them to similar approaches employed by other countries.

Modernization: Reforming the educational, agricultural, and industrial policies of China

First, Deng rescinded many of the extreme policies of the Maoist regime, bringing a degree of immediate relief to millions (Schrecker, 1991: 184–188). To sum up his philosophy, Deng Xiaoping stood behind a campaign of “the ‘four modernizations’ [including] agriculture, industry, science and technology, … the military” not to mention the CCP itself (Fairbank et al., 1989: 974). In order to accomplish these goals, however, Deng understood that without a change in personnel, these reforms faced severe problems of implementation (Fairbank et al., 1989: 974). Yet, he also realized that an effective wholesale purge of entrenched officials would likely destroy the newly constituted party and possibly throw China once again into chaos. For instance, even “though more than 200,000 were expelled [from the CPP] and 325,000 were disciplined, this was little more than 1 percent of the membership” (Fairbank et al., 1989: 974). Hence, Deng’s “rectification campaign” had to aim at a gradualist, yet steady approach to removing the old party members and replacing them with qualified individuals. Concretely, this meant changing both the bases for recruitment and promotion which had advanced unqualified personnel during Mao’s tenure. In the educational sphere, for example, new recruitment policies included reducing the number of universities and reinstituting the examination system for selecting student bodies rather than the “democratic” election process created during the Cultural Revolution which emphasized individual charisma over intelligence. As to promotional policies, over nine years the most aged members of the leadership “were invited onto an honorary but powerless Advisory Council, retaining their salaries and numerous perquisites—houses, servants, limousines, special supplies, and privileges” (Fairbank et al., 1989: 975).

Coupled with these internal reforms, Deng also set about fundamentally restructuring China’s economy. In the agricultural realm, for instance, Deng established the “responsibility system” which allowed farmers once again to sell any surplus over that promised to the Party on the market (Fairbank et al., 1989). This created a renewed incentive to local farmers to produce more than their required quota and “farm production … amazingly doubled in volume” (Fairbank et al., 1989: 978). Likewise, a host of economic reforms were instituted such as allowing a credit system to revive and establishing four “Special Economic Zones” to encourage foreign trade and investment (Fairbank et al., 1989: 978).

The revised party history: Polishing the tarnished image of the Chinese Communist Party

Realizing that a popular revolution might occur if he did not take decisive action, Deng worked to rehabilitate the stained image of the CCP. To do so, Deng relied upon the same source of strength that Mao had employed to secure his stranglehold on the country’s ideological ferment: namely, the media. In particular, Deng turned the Peking radio and the People’s Daily paper into tools to discredit Mao’s remaining allies, “systematically denounc[ing them] as anti-party renegades” (Fairbank, 1983: 443). In the same vein, the Central Committee of the CCP, which was the most powerful political body in China, very publicly evaluated the performance of Mao concluding “that his great earlier contributions outweighed the grievous errors of his later years in a proportion of about 70 to 30” (Fairbank et al., 1989: 975). To this end, the regime engaged in logical and legal tai chi to draw a distinction between the “political” mistakes of Mao Zedong and the allegedly criminal activities of his subordinates (Tung, 1981: 2–3). This was part and parcel of a “revised Party history” in which “the newly constituted Party under Deng Xiaoping … claimed credit for exorcizing the wound, ending class struggle, and reasserting law and order” (Farquhar and Berry, 2003: 128).

The very notion of formally critiquing Communist Party decisions, however, was something that had to be carefully reintroduced into the popular dialogue through an ideological campaign (Miller, 1981: 8). Thought control under Mao Zedong had been so pervasive that certain ideas had taken root and stubbornly resisted new approaches no matter how right-minded they might seem. In particular, one of Deng Xiaoping’s chief rivals was the “whatever” faction of the Chinese Communist Party so named because it espoused the “two whatevers,” viz., “We firmly support whatever decisions Chairman Mao made. We eternally follow whatever instructions Chairman Mao gave” (Deng, 2005: 444).

Only by “press[ing] hard for a formal, authoritative resolution by the Party [that] critically evaluat[ed] Mao’s leadership of the party in the last years of his life and repudiat[ed] the politics and policies of the Cultural Revolution …” was Deng able to “ … reinterpret … and rewrit[e] … party history” thereby undermining the power base of this group (Miller, 1981: 9). Even so, the strength of this whatever faction could not be ignored and influenced Deng’s ongoing political calculations. In particular, Deng ensured that the party line as explicated by such sources as the People’s Daily kept Chairman Mao’s name out of the crosshairs of vitriolic public dialogue, insisting that “[w]hile in his later years Mao Zedong had ‘made mistakes, especially in initiating and leading the Cultural Revolution,’ these mistakes were ‘entirely different’ in nature from the criminal actions of Lin Biao and ‘gang of four’ cliques …” (Miller, 1981: 22).

While the trials of Madame Mao and her allies (discussed below) have been linked to Deng’s effort to discredit both the Cultural Revolution and Mao worship (Hsiung, 1981: 2; Miller, 1981: 7–9). “Mao Zedong is scarcely mentioned in the long, detailed list of 48 criminal charges against the defendants …” (Miller, 1981: 21). The few extant references are generally sympathetic, including an assassination attempt against him in 1971 (Miller, 1981: 21).⁵ As this reveals, the political dynamics that inhere in constructing a revised history can be a powerful force in the continuing political calculus for countries transitioning to normalcy (Miller, 1981: 6).

The democracy wall: Allowing for limited freedom of expression

In this reformist fervor, Deng likewise permitted a “democracy wall” to flourish for approximately two years in Beijing, allowing the people to vent their long bottled frustrations by “post[ing] political criticism” (Fairbank, 1983: 491). While beginning with the posting of thousands of opinions and complaints to the government on an actual “200-yard brick wall in Xidan, west of Tiananmen Square” in Beijing during the winter of 1978, this practice soon sprouted into a full-fledged movement (Ruoxi, 1982: 2). Invoking a tradition of public censure that had been long suppressed, “‘democracy walls’ appeared in other major cities of China” along with the publication of “over thirty unofficial journals and pamphlets published in the capitol alone” (Ruoxi, 1982: 1). By 1979, this movement grew into a sharp thorn in the side of the new regime by encouraging demonstrations and it was finally put down with some effort including a “wall cleaning campaign” and arrests and trials of the editors of “reactionary” journals (Ruoxi, 1982: 20).

Yet, the revival of free thinking survived the death of the journals. In particular, a national understanding of the Ten Lost Years entitled “‘[s]peaking bitterness’ [has become] the dominant narrative of modern Chinese history” (Farquhar and Berry, 2003: 134). As Mary Farquhar and Chris Berry argue, “twentieth century Chinese historiography” itself became a key force in shaping the national memory “… by seizing the opportunity of the mass media to produce narratives that speak bitterness to encourage a sense of being part of the national ‘people.’” (Farquhar and Berry, 2003: 174). Thus, providing “space” whether a physical location or a symbolic one for people to begin coming to terms with the tumultuous past is an important step to recovering a sense of communal well-being (Mertus, 2000: 159; Rigby, 2001: 55 –59; Villa-Vicencio, 2004: 41).

Centerpiece of the reconciliation: Trials of the perpetrators of the Cultural Revolution

What incontestably locates China within the transitional justice literature was the decision of the CCP to employ the apparatus of the legal system to the reconciliation process. In 1980, the Deng regime publicly prosecuted 10 high ranking officials who had assisted in implementing the policies of the Cultural Revolution, including Jiang Qing (i.e. Madame Mao Zedong), Zhang Chunqiao, Yao Wenyuan, Wang Hongwen, Chen Boda, Huang Yongsheng, Wu Faxian, Li Zuopeng, Ziu Huizuo, and Jiang Tengjiao.⁶ The first four individuals had captured the popular imagination as the main instigators behind the Cultural Revolution and had long since acquired the derisive title of the “Gang of Four” (Hsiung, 1981: 1). Lasting for over a month (i.e. November 20 to December 29), their trials received massive attention from the Chinese populace, reaching a domestic audience of approximately 210 million through television broadcasts and appealing to the general populace “through newspapers, posters, official releases, photos, cartoons, [and] documentaries …” (Farquhar and Berry, 2003: 129). The trial thus became the centerpiece of the new regime under Deng Xiaoping, representing both a power struggle between Deng and the “whatever” faction of Maoist loyalists and an “ideological struggle” for the soul of the nation (Hsiung, 1981: 2).

“Murder on a moonless night, arson during a high wind” (Fei, 1981: 6). Thus writes Professor Fei Hsiao Tung (1981) in reflection on the perpetrators of the Cultural Revolution who he perceived were akin to mutinous sailors gleefully capturing the vessel of state the moment it ventured into troubled waters.⁷ Fei Hsaio Tung is in a particularly interesting position to make this assessment, being one of the judges appointed to the Special Court established by China’s Standing Committee of the National People’s Congress in 1980 to try the remaining perpetrators of the Cultural Revolution (Fei, 1981: 6). Indeed, Fei Hsaio Tung noted with approval that the trials in China had been “likened … to those held in Nuremberg and Tokyo after the Second World War” (Fei, 1981: 7).

Yet, while the pro forma requisites of justice were seemingly satisfied in this trial, its purpose and construction amounted to little more than an exercise in symbolic politics (Miller, 1981: 15). Specifically, the trials manifested nearly all of the classic trademarks of a theatrical performance, being a carefully crafted exercise in political scapegoating under the convenient rubric of law (Farquhar and Berry, 2003: 130).⁸ Before the trials can be evaluated, however, the definition of “trials” in their broadest sense bears note.

A “trial” is “[a] formal judicial examination and determination of evidence and legal issues” (Garner, 1996: 634). The clinical nature of this definition, however, obscures much variation in the international context. As Edward W Knappman (1997) explains, “The very concept of what constitutes a trial—much less a fair trial—differs radically from one society to another ….” He continues that nonetheless

… there is a common denominator … among all trials in all times and places. Each trial, however rigged, venal, or tyrannical, was intended to provide a cloak of legitimacy for the punishment of a real or imagined infraction of the rules of the contemporary social order. (Knappman, 1997: xxv)

Thus, a “criminal trial” broadly encompasses not only formal judicial examinations conducted by the indigenous legal system of a given country, but also those trials executed by special tribunals created by the international community such as the International Military Tribunal at Nuremberg, Germany following World War II (Knappman, 1997: 267) and the International Criminal Tribunal of Rwanda (Kamatali, 2003: 116).

Perhaps most importantly, with regard to criminal trials, courts heavily emphasize due process considerations. “Due process” refers to “[t]he conduct of legal proceedings according to the rules and principles established in the systems of jurisprudence for the protection and enforcement of private rights, including notice and the right to a fair hearing before a tribunal with the power to decide the case” (Garner, 1996: 210–211). The requisites of due process may be broken down into two types: procedural due process and substantive due process (Garner, 1996: 211). While both refer to the Due Process Clauses of the Fourth and Fifteenth Amendments of the United States Constitution which restrict the federal government and states respectively, procedural due process establishes the notice and hearing requirements where life, liberty, or property interests are at stake. In contrast, substantive due process requires “legislation to be fair and reasonable in content and to further a legitimate governmental objective” (Garner, 1996: 211). The importance of these requirements in the international legal context is widely recognized (Hayner, 2002: 129).

Lest one think that in couching the salient aspects of trials in a “due process” rhetoric this analysis seeks to impose “Western” ideals upon the Chinese legal system, these principles were embodied in the relevant articles of Chinese law and were nevertheless discarded en masse to facilitate the trial of the Gang of Four. Hungdah Chiu (1981: 27–39) provides an excellent description of the multiple violations of Chinese law which marred China’s trials. Since Chiu discusses each of these points in detail, the following seeks only to highlight the broad categories of these violations. As the following demonstrates, nearly every aspect of fair trials was compromised for political expediency.

First, the arrest of the Gang of Four was conducted by a political body lacking the authority to make an arrest under Chinese law (Chiu, 1981: 28).⁹ This “party organ” then “… referred [the cases] to the Supreme People’s Procuracy for prosecution ….” (Chiu, 1981: 28). Thus, the political rather than legal impetus behind these arrests is visible ab initio. Second, the defendants were detained for an illegal length of time in facilities inappropriate for those not already convicted of crimes (Chiu, 1981: 29–30).¹⁰ Third, the “special courts” created to hear the cases were ad hoc, arguably established without legal authority as the relevant law permitted the establishment only of “standing organs (divisions)” which are expected to have a lasting existence and not “special procuratorate[s]” which disbanded at the completion of the trial (Chiu, 1981: 30–31).¹¹ While Chiu does not make this argument, the danger in forming such ad hoc tribunals is that such bodies may be composed of individuals who lack expertise in the relevant area or who serve particular interests other than those of justice.

Problems of personnel in fact formed the fourth critical problem area for these ad hoc tribunals. First, a number of the “ … judges … were not selected from within the judicial … branch …” but from active duty military personnel, some of whom were members of the General Political Department of the People’s Liberation Army (Chiu, 1981: 31). Second many of the judges and procurators were not only unqualified, but were also interested parties in violation of Chinese law (Chiu, 1981: 30–34). For instance,

Among the alleged victims listed in the indictment are Jiang Hua, chief judge of the special court, and Huang Huoqing, chief procurator of the special procuratorate. Among the thirty-five judges were at least twenty who had allegedly been persecuted during the Cultural Revolution, and most of the others were directly related to people who had suffered similarly. (Chiu, 1981: 31–32)

This violated Article 23 of the Criminal Procedure Law requiring judges to withdraw from cases where “[t]hey are parties to the case or close relatives of the parties to the case” or “[t]hey themselves or their close relatives have an interest in the case” (Chiu, 1981: 31). In addition, there was a lack of adequate defense counsel. For instance, defense lawyers when provided upon the request of the accused failed to participate actively in mounting a defense and “[n]one of the defense lawyers objected to any of the prosecution’s questions or asked to cross-examine a witness” (Chiu, 1981: 33). This was so despite the questionable credibility of many witnesses who “read from notes while testifying” (Chiu, 1981: 34). Likewise, in instances where a defendant proceeded pro se, the right to call witnesses was abrogated (Chiu, 1981: 34).

Fifth, there was a marked failure to establish the necessary causal link between the acts alleged in the indictment and the outcome. One remarkable example that Chiu (1981: 33) details is that of Chen Boda who “was accused of causing the death of 2,995 people and the persecution of 84,000 by giving a speech attacking a provincial party organization.” Chiu (1981: 33) notes that no attempt to explain how this speech incited immediate violence was ever explicated. Thus was the misery of the many placed on the shoulders of the few. Such scapegoating is inappropriate in a criminal trial which is expected to mete out sentences based on the evidentiary establishment of the elements of specified offenses. Finally, the crimes themselves were articulated in laws passed subsequent to the commission of the alleged crimes (Chiu, 1981: 36). Therefore, rather than a symbol of justice,

… the trial became a [source of] collective entertainment, especially in the cities, as the daily courtroom drama unfolded before viewers’ eyes. It was … a propaganda coup, publicizing the Gang of Four’s crimes, introducing socialist law, and transforming courtroom protocols into the shared experience of a mass trial and sentencing rally, designed to “frighten the criminal, encourage healthy trends, give publicity to the legal system and educate the masses. (Farquhar and Berry, 2003: 129–130)

As a singular epitaph to the death of justice in these proceedings, “[t]he Beijing trials closed on January 25, 1981, with the same triumphant fanfare that had greeted their opening” with “[t]he People’s Daily on the following day declar[ing] that the trials’ verdicts against the Cultural Revolution cliques “realized the people’s wishes” (Miller, 1981: 17). As such, the new regime failed to realize a key lesson of the Cultural Revolution: namely, that tragedies of human existence find their raison d’être in climes where the wishes of the many outweigh the rights of the few. Although the trials were an unjust exercise in scapegoating a select cadre of party members for the sins of the many, they nonetheless served a crucial role in rehabilitating the regime in the eyes of the citizenry. As such, the trial was a “formal finale to that period” allowing the nation to “mov[e] forward” (Fei, 1981: 11).

Theoretical argument: Locating China’s transitioning process within an expanded multinational framework

Many countries have used strikingly similar approaches to those employed by the Deng government following the Cultural Revolution to restore a sense of normalcy or at least to bolster regime legitimacy after periods of intense civil strife and human rights violations.¹² Strangely, however, while strong scholarly attention has been devoted to truth commissions (Hayner, 2002; Minow, 1998; Rigby, 2001; Villa-Vicencio, 2004) and trials (Honeyman et al., 2004; Kamatali, 2003; Mertus, 2000; Minow, 1998; Rigby, 2001) employed in many different countries with varying degrees of efficacy, China’s transitional experience has been largely neglected. Considering that the Cultural Revolution has been identified amongst the “‘bottom’ of the evils” the world has witnessed including the Holocaust (1933–1945) and the genocides in Bosnia (1994) and Rwanda (2003) (Shriver, 2005: 36), the Chinese case surely merits placement within the broader transitional literature. The Chinese case has much to contribute to the theoretical underpinnings of transitional scholarship. As an early example of an extreme yet somewhat competent approach to reconciliation that relied upon neither justice nor truth to accomplish its goals, China provides an important additional case study adding breadth and complexity to the discussion. Thus, the analysis below seeks to incorporate the Chinese experience into an expanded framework for contemplating transitional processes.

Truth versus justice: Introducing the traditional dichotomy

In evaluating transitional processes, the literature typically constructs a continuum describing two different values that are seemingly in a state of competitive tension such as justice and truth, amnesty and justice, or vengeance and forgiveness. To clarify, transitional scholars often assume that modern nations emerging from dark periods must undertake a rational calculus in determining how much justice to sacrifice for truth, how much amnesty to trade for justice, or how much vengeance can be extracted before forgiveness may be forthcoming (Kamatali, 2003; Minow, 1998; Villa-Vicencio, 2004). The skill with which these difficult policy choices are made is then identified as the inimitable key to restoring respect for civil order, healing old wounds, and reaffirming basic human decency (Kamatali, 2003: 115 –116; Bond, 2005). For instance, in Martha Minow’s (1998) formulation, this tradeoff is envisioned as a policy choice Between Vengeance and Forgiveness which happens to be the title of her text.¹³ Specifically, she rejects the notion that truth and justice are the sole “objectives,” arguing that the more “basic, perhaps implicit pair of goals or responses to collective violence” is best captured by the “vengeance” and “forgiveness” dialectic (Minow, 1998: 9–10). As she explains,

Vengeance and forgiveness are markers along the spectrum of human responses to atrocity. Yet they stand in opposition: to forgive is to let go of vengeance; to avenge is to resist forgiving. Perhaps justice itself “partakes of both revenge and forgiveness.” So I return to the central question: Might paths lie between vengeance and forgiveness? (Minow, 1998: 21)

Another example, is provided by Charles Villa-Vicencio (2004) in describing the South African experience. As he introduces this tense binary dialectic,

George Bizos argues that South Africa had a choice between “the silence of perpetrators without justice being done and learning the truth without perfect justice having been done.” The choice of the latter involves amnesty. (Villa-Vicencio, 2004: 30)

The perceived clash between truth and justice, however, is largely due to a theoretically constricted framing of transitional policy choices rather than to any natural friction between these values.¹⁴ Though perhaps counterintuitive, the range of transitional processes does not vacillate between only the positive poles of truth versus justice. On the contrary, “effective” transitional processes may restore civil order and instigate a reconciliation sufficient for the operation of the political regime through mechanisms predicated on injustice rather than justice. Likewise, such processes may be defined by relative degrees of silence about past events rather than truth. Moreover, unfamiliar mixtures of these seemingly incompatible ideals are possible and have in fact occurred in a variety of transitional contexts. The following framework thus provides a means for both classifying and incorporating unconventional yet functional transitional policy choices into the debate.¹⁵ This more multidimensional framework for evaluating such projects thus aims to highlight the complex swirl of competing considerations that shape transitional policy choices.

Proposing a new framework: Traversing the four paths on the crossroads of transitional justice and reconciliation

Rather than restricting the evaluation of transitional experiences to a single binary relationship, conflict transformation and reconciliation processes may be graphically represented as reproduced in Figure 1. At least two pairs of overarching and often competing sets of concerns influence national processes of reconciliation: namely, justice versus injustice and truth versus silence. As depicted in Figure 1, these pairs of concerns may be represented as two intersecting lines on the coordinate plane. Called here the “Crossroads of Transitional Justice and Reconciliation Processes” this representation seeks to provide a roadmap in clarifying the range of available transitional justice and reconciliation policy choices. Critically, the universe of those policy choices far exceeds the options considered in this paper. For instance, other options not considered include lustration which involves limiting or prohibiting civil servants of a discredited regime from public office along with memorization such as erecting monuments or crafting ceremonies to commemorate the victims. The vertex point of the graph, therefore, represents the hypothetical “crossroads” or starting point of the transitional policy selection process where the leadership of a given country first identifies and formulates the transitional policy it will adopt following a period of instability and violence—presuming the response is “planned” at all. Thus, standing at the crossroads, if the nation were to gaze up and down the paved paths in all four directions, it would glimpse the extremes of the possible policy. These four directions represent pure approaches to effectuate these ideals and thus are unlikely to perfectly describe any actual transition process.

Figure 1.

The crossroads of transitional justice and reconciliation processes. Source: Franklin Barr Lebo.

To begin, standing at the vertex or crossroads and looking to the right or east down the x-road, the country would spy the policy goal of justice. “Justice” refers to transition processes that employ a legalistic approach for punishing the perpetrators of crimes against the citizenry through properly cognized courts of law following generally recognized principles and established laws choices available. This is important for the administration of fair and equitable trials (see above under the discussion of China for examples). In contrast, upon turning about and peering down the x-road to the west, the country would glimpse “injustice” in the distance which includes the intentional abuse of the legal system as a front to scapegoat select members of a discredited regime for political purposes ignoring or warping recognized principles and established laws to administer unfair and inequitable trials. Alternative policies grounded in injustice might include announcing blanket, unconditional amnesty without concomitant public historical commissions, truth commissions, or trials to allow the perpetrators of criminal acts to escape prosecution.

Subsequently, if the country were to face due north peering down the y-road, the policy goal of truth would be visible in the distance. “Truth” policies refer to truth and reconciliation commissions and their reports, the opening of secret files, historical commissions, and other memory projects aimed at providing a full and accurate accounting of history along with the possible provision of reparations to victims (Mertus, 2000: 159). Finally, if the country were once again to turn about staring down the y-road to the south, it would see “untruth” or “deceit” in the distance and “silence” in the haze far beyond. In the transitional justice context, “untruth” ought to be viewed as a lesser form of truth evasion than “silence.” China provides a helpful illustration of this final branch of the crossroads. As argued above, the Chinese government sought to reconstruct history in a way most favorable to the continued legitimacy of Deng’s newly constituted CCP by underscoring the errors of Mao’s regime. Yet, once this “history” was propagated, it quickly dissolved in the acidic environment of the international community writ large (Chiu: 1981; Harris, 1981: 44; Miller, 1981: 21) and has since been debunked by the harshest arbiter of all: history (Fairbank, 1983: 479–480; Farquhar and Berry, 2003). Thus, deceit or untruth is unlikely to be lasting as a reconciliation device being only a slippery steppingstone to a different narrative induced equilibrium. In contrast, silence is a possible reconciliation device that may take root in the soul of a people lasting for generations and facilitating reconciliation though collective “amnesia” (Rigby, 2001: 39–61). While this stance may initially strike a discordant note to the ear, Spain (Rigby, 2001: 39–61; Shriver, 2005: 39) is an illustrative stop on the southern half of the y-road.

Mapping the stops along the crossroads: Locating the various countries on the crossroads of transitional justice and reconciliation

The utility of the transitional justice graph is more readily apparent when one begins to consider the placement of various countries on the transitional plane, noting that they generally blaze on their own trails in the murky realm between these four extremes. To begin with Quadrant I, if the country or countries under consideration selects a strategy emphasizing only justice it would be located directly on the eastern half of the x-road. Yet, the likelihood of constructing a successful and purely judicial program following a period of genocide or widespread human rights abuses is currently little more than an elusive ideal. Absent massive international support such as a permanent system of international courts, the sheer volume and administrative burden of accomplishing this feat will likely leave many victims unsatisfied and many perpetrators untried or unpunished (Honeyman et al., 2004: 2; Kamatali, 2003: 132–133; Mertus, 2000: 159; Minow, 1998: ix–x).

Nonetheless, the closest example available of a transitional process which operated¹⁶ on a justice logic is the International Military Tribunal at Nuremberg following World War II and the subsequent system of trials throughout Europe of the Nazi leadership (Knappman, 1997: 267; Rigby, 2001: 25–32). The primary rationale underlying Henry Stimson’s argument to the Roosevelt Administration for establishing the trials at Nuremberg was grounded in traditional jurisprudence: namely, to uphold the rule of law by prosecuting perpetrators “in a dignified manner” focusing on the particular facts and circumstances of the case at bar and governed by the Rules of War (Bass, 2000: 164–166). To this end, the international tribunal was expected to uphold the law, establish precedent, and assure predictability in the meting out of sentences, thereby promoting justice and deterring future violations (Bass, 2000: 156–157).

Yet, it would be an oversimplification indeed to place Nuremberg either directly on the east branch of the x-road or even at the extreme right of Quadrant I. This is because Nuremberg also evidenced elements of victors’ justice. For instance, the Nuremberg Tribunal heard conspiracy charges against the Nazi leadership though conspiracy had not been previously articulated in international law, as well as war crimes for attacks against civilians such as the “dropping of mines over London by parachute” even though the allies subsequently engaged in similar targeting of Germany’s civilian population (Knappman, 1997: 171, 192). Likewise, part of the unifying logic behind Nuremberg was to instigate the process of history building with a seemingly undeniable testament to the supremacy of the rule of law (Bass, 2000: 147). Hence, Nuremberg is located far out to the right towards but not reaching the ideal of justice on the coordinate plane, yet above the x-road indicating its elements of truth building.

Turning full attention to the remaining boundary line of Quadrant I, if a country chooses to emphasize only truth to the exclusion of justice,¹⁷ it would stand directly on the northern half of the y-road. Perhaps the best example of subordinating justice to the pursuit of truth is demonstrated by Guatemala (Hayner, 2002: 45-49). As part of the negotiated settlement brokered by the United Nations to end the civil war which “lasted for over thirty years and resulted in some 200,000 deaths and disappearances,” the government established a truth commission (Hayner, 2002: 45). Named the “Commission to Clarify Past Human Rights Violations and Acts of Violence that Have Caused the Guatemalan People to Suffer” or “Historical Clarification Commission” for short, it vigorously sought to unearth the truth behind the human rights abuses (Hayner, 2002: 45–46). Yet, despite the exemplary work of the Commission and its eventual publication of a very powerful report published in February 1999 “to the public in an emotional ceremony attended by thousands of persons in the National Theater in Guatemala City,” impunity for the perpetrators was essentially unaffected as the enabling treaty stripped the Commission of “any judicial aim or effect” (Hayner, 2002: 48, 46). Thus, Guatemala ought to be placed to the left of the y-road and slightly to the west towards the injustice side of the graph. At the same time, however, while the Commission was thus “castigated as too weak,” in the end its report influenced the “newly elected president Alfonso Portillo [in 2000] … to [pledge to] implement the Clarification Commission’s recommendations,” including addressing both the systemic injustice and “anti-democratic nature of institutions” in Guatemala (Hayner, 2002; Minow, 1998). As a result, even though individual perpetrators may have generally escaped with impunity, the Guatemalan governmental system itself has since become the target of reformist efforts (Hayner, 2002: 48–49; Minow, 1998: 129). This reveals that while falling into Quadrant IV, Guatemala ought not to be located too far towards injustice on the western side of the x-road. Overall, therefore, Guatemala demonstrates that a transition process emphasizing truth alone may also serve the purpose, however imperfectly, of moving war torn countries forward.

Finally, if the country in question employs a transition process that mixes truth and justice, it ought to be located within Quadrant I between the two transition process axes. Concretely, mixed approaches including both trials and truth commissions have been adopted in countries such as South Africa and Rwanda (Hayner, 2002: 52; Minow, 1998: 30, 54). The South African experience was unique in designing a transitional process following the years of apartheid on the assumption that the truth of many crimes would never be forthcoming if the perpetrators were not guaranteed safety from prosecution (Villa-Vicencio, 2004: 30). To this end, South Africa developed a system of conditional amnesty which allowed perpetrators to avoid legal sanction so long as they sought amnesty for crimes with an identifiably “political” animus and “provid[ed] a detailed account” of their actions (van der Merwe, 2001: 86–87).

This full accounting heavily emphasized truth as

the South African Truth and Reconciliation commission was mandated to inquire into ‘the identity of all persons, authorities, institutions and organizations’ involved in gross human rights violations, and to ‘prepare a comprehensive report which sets out its activities and findings’ which was clearly understood to include the names of perpetrators where known. (Hayner, 2002: 108)

Yet, victims were not entirely denied reparations, for when a perpetrator was granted amnesty and the identity of the victims established the cases were then subject to possible referral to a Reparation and Rehabilitation Committee (Coetzee, 2004: 186). As such, the system was meant to be three parts truth and perhaps one part justice. Consequently, South Africa is properly located in Quadrant I, but closer to the ideal of truth than of justice.

In an interesting contrast, Rwanda has utilized a transitional process marked by a communal form of participatory justice which is three parts justice and one part truth (Honeyman et al., 2004). In the aftermath of the genocide of approximately “… 800,000 Tutsis, Hutu moderates, and other government opponents …” in 1994, the Rwandan people clamored to end the “culture of impunity” by punishing the perpetrators of the violence (Honeyman et al., 2004: 2, 4). Yet, the monumental nature of properly prosecuting over 100,000 suspected participants in the genocide foreclosed the possibility of exclusive recourse to the weakened and depopulated justice system (Honeyman et al., 2004). Refusing to adopt a diluted mixture of amnesty and justice as occurred in South Africa, Rwanda instead developed a novel system of community courts (i.e. “Inkiko-Gacaca”) involving the whole nation in “nearly universal participation” by providing information and assisting with the judgments (Honeyman et al., 2004: 5).¹⁸ While imperfect, these community courts expedited the legal process meting out sentences to perpetrators who would otherwise have been imprisoned without trial for many years (Honeyman et al., 2004).

At the same time, justice through the legal process of the Inkiko-Gacaca was not meant to preclude the pursuit of truth. Rather, “… truth is emphasized as the essential good” and all participants were “… exhorted to ‘tell the truth’ …” (Honeyman et al., 2004: 9). While pursuing justice and truth in this complimentary fashion was an ideal frequently beyond reach, the structure of the Inkiko-Gacaca was conducive to communal accusation, and participation which was key to reconstructing the events in question (Honeyman et al., 2004: 9, 11). For instance, before hearings could be convened by the elected Inkiko-Gacaca judges (i.e. “iyangamugayos”), the rules required a quorum of at least 100 members of the community (Honeyman et al., 2004: 16). While the deceased victims, of course, could not speak against the perpetrators, this procedure increased the possibility that perhaps someone present had witnessed the events in question (Honeyman et al., 2004: 16). Hence, the Rwandan case illustrates that carefully constructed transitional mechanisms that are designed to meet established collective norms need not necessarily sacrifice justice in the pursuit of truth. Hence, Rwanda is properly placed in Quadrant I between the roads of truth and justice, but farther out on the road of justice than truth.

With the foregoing familiar examples established on the transitional plane, this analysis now turns to the more extreme yet equally relevant transition processes which are located in Quadrant III. In particular, China, Spain, and Ecuador present sobering examples of “effective” transition processes grounded in the far less pristine motivations of injustice and deception or silence. As revealed through the discussion above, China belongs on the far left or western side of the x-road as close to injustice as Nuremberg was to justice.¹⁹ At the same time, China also does not fall directly upon the line of injustice as the abuse of the legal system included not merely the failure to follow established rules and procedures, but a systematic governmental effort to create a revised history based in the outright fabrication that Jiang Qing and her allies were the sole force to blame for the Cultural Revolution. Hence, China should be located beneath the x-road approximately half way toward the extreme of complete “untruth.”²⁰

The remaining lower or southern half of the y-road indicates transition processes which have strained beyond even the extreme of untruth to one of complete silence. To concretize this situation, one need look no farther than the Spanish experience following the negotiated end of the extremist Franco Regime in 1977 approximately two years after the dictator’s death (Rigby, 2001: 53–55).²¹ Where the transition to a democratic form of government is a negotiated settlement between the new and old regimes, transition processes emphasizing either truth or justice may be foregone largely out of fear that old hatreds might be stirred leading to renewed violence (Rigby, 2001: 55, 53). In the Spanish case, this concern was very real (Rigby, 2001). In order to maintain a stranglehold on the country, Franco had instituted a reign of terror and mass killings (Rigby, 2001). As one source explains, “[t]he American historian Gabriel Jackson has estimated that between 1936 and the end of the mass executions in 1944, the Nationalists liquidated some 150,000 to 200,000 of their compatriots” (Rigby, 2001: 41).²² As Rigby (2001: 54) clarifies,

All those parties and groupings that sought to see Spain transformed into a political democracy agreed on a pact to forget the most painful elements of the past and engage in a form of selective amnesia necessary to construct a new history, one that would provide a sound foundation for the new democratic culture that they sought to build.

In contrast to history fiction, this “new history” simply paints Spain’s history as a “tragedy, with the associated theme of the participants as hapless victims of forces beyond their control leading them toward an inevitable and dreadful outcome” (Rigby, 2001: 55). While one might protest that this is little different from untruth, it is a far more serious manifestation of “the pact of oblivion” heralded by the establishment of “new public symbols depicting both sides in tragically heroic terms (Rigby, 2001: 54–56). Thus, Spain is perhaps the only country considered thus far to properly fall directly on the “ideal” line being, apparently, a nearly unmitigated example of competently employing silence as the primary means of transition to normalcy.

A far more serious challenge is that Spain actually belongs with Ecuador in the southwest corner of Quadrant III representing a case of blatant injustice as the perpetrators of many offenses have been left unpunished. The difficulty with this perspective is twofold. First, the requisites of justice in this context are far from clear. In particular, one wonders whether a legalistic approach could possibly have been employed in a fair and equitable manner given that eyewitnesses were either deceased or likely perpetrators.²³ In this case, perhaps “justice” was the nationwide transition into a democratic, open society free from the tyranny of the previous era rather than an awkward attempt to apply the legal system to punish the perpetrators of mass atrocities. Indeed, this suggests that societal revictimization may have resulted from an attempt to prosecute the vast numbers of individuals involved in the killings during the Francoist regime. Second, Spain did not have a popular groundswell of national and international opinion in favor of trials or truth commissions. Thus, unlike the Ecuadorian case where the truth commission was instigated only to be abandoned by the government (Hayner, 2002: 68–69), Spain started from an approach of silence as a reflection of the true sentiments of the citizenry. As such, the apparent collective desire of the Spanish people in toto to grieve privately for the horrors of the past is perhaps understandable not as an evasion of justice, but as a conscious effort at communal reconciliation (Rigby, 2001). In any event, as equally reasonable arguments exist on both sides of this debate, the placement of the Spanish case directly on the southern half of the y-axis and thus squarely between the ideals of justice and injustice seems defensible.

Turning to the final section of the transition crossroads, Quadrant II remains the only uncharted area in this discussion. Yet, the possibility of a particular transitional experience falling into this area remains quite possible. In particular, it would include a situation where the requisites of fair trials have been scrupulously followed, but the government in question either attempts to deceive the public as to the purpose and nature of the trials or denies their existence altogether. While initial reaction to such secret trials is rightly one of loathing with the concomitant reflexive response to pencil the country solidly into Quadrant III above and as close to injustice as feasible, the possibility remains that such secret trials are in fact conducted in an entirely fair and just manner. One might note that if the new Iraqi government were to try detainees held by the United States authorities in Guantanamo Bay by using secret trials, this might very well raise precisely this set of concerns. Indeed, in the name of national security, the Iraqi citizenry would be expected to take on faith that the requisites of justice are being upheld while the extreme of silence is pursued.²⁴ Thus, though one may hope that Quadrant III remains less explored, its existence cannot be ignored.

Conclusion

As the foregoing argues, the Chinese experience in conflict transformation and reconciliation after the Cultural Revolution was aimed at neither justice nor truth, but rather at crisis abatement and political expediency to facilitate a gradual, partial transition to a more open society. On the former point, Deng Xiaoping instituted a number of lasting substantive reforms that greatly improved education, agricultural and industrial production, and the general economic health of the country. Likewise, important short-term tactics allowed the public to grieve and vent its collective frustration such as through criticism of the Maoist regime on democracy walls and the highly emotional trial of Madame Mao and her colleagues. On the latter point, these short term stratagems may be criticized for scapegoating a few individuals through largely mock trials, widespread de facto amnesty for the perpetrators of serious crimes, a speedy return to the suppression of free social discourse, and a general revisionist approach to history.

Yet, none of these points ought to be read to suggest that this approach was unsuccessful. Rather, the Deng Xiaoping era brought China through a difficult period of reconciliation between the citizenry and the CCP. Thus, the bare requisites for a successful transition to relative normalcy may depend to a great extent upon the particular political milieu of a given country rather than adherence to ultimate truth and the preemptory norms of international justice. At the same time, the reality of the continued extremism of the CCP was vividly demonstrated with the massacre of student protestors at Tiananmen Square in 1989. Thus, the maxim that those who do not learn from their mistakes are destined to repeat them presents a powerful counterargument for expecting more from conflict reconciliation processes than the bare minimum.

By placing the Chinese experience solidly within the larger transitional justice literature, this article holds that “effective” transitional policies are both more nuanced and potentially more morally ambiguous than typically presumed. Rather than a simple value dichotomy, the Crossroads of Transitional Justice and Reconciliation graphically demonstrates that between the extremes of justice and injustice, truth and silence lies a vast expanse of uncharted territory. From a positivist perspective, this ought to encourage future transitional policymakers to find innovative strategies which incorporate truth and justice in ways that are harmonious with the needs of traumatized peoples. At the same time, by highlighting national transitional experiences which fall into the more questionable quadrants, this graph also puts us collectively on notice that less than defensible means may be competently employed to produce roughly the same ends of regime stability and legitimacy. In the end, the responsibility falls upon the worldwide community of scholars and policymakers to recognize such processes for what they are and pursue transitional policies with eyes wide open. Only in this way may future generations look back upon their transitional histories with the approval validated by processes fashioned in truth, justice, and hence unmitigated reconciliation.

Footnotes

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Notes

References

Bass

(2000) Stay the Hand of Justice. New Jersey, NJ: Princeton University Press.

Becker

(1996) Hungry Ghosts: Mao’s Secret Famine. New York: The Free Press.

Bonava

(1984) Verdict in Peking. New York: G.P. Putnam’s Sons.

Bond

(2005) From saying ‘sorry’ to a journey of healing: National Sorry Day in Australia. In: Brenk

Hellema

Verhoeven

(eds) People Building Peace II: Successful Stories of Civil Society. Boulder, CO: Lynne Rienner Publishers.

Chiu

(1981) Chapter II: Certain legal aspects of the recent Peking trials of the ‘Gang of Four’ and others. Occasional Papers/Reprints Series in Contemporary Asian Studies 40(3): 27–39.

Coetzee

(2004) An overview of the TRC amnesty process. In: Villa-Vicencio

Doxtader

(eds) The Provocations of Amnesty: Memory, Justice and Impunity. Trenton, NJ: Africa World Press.

Deng

(2005) Deng Xiaoping and the Cultural Revolution: A Daughter Recalls the Critical Years. Translated by Shapiro

. New York: C Bertelsman. (Chinese edition 2002).

E L (1983) The Travels of Lao Can. Translated by Zianyi

Yang

. Beijing: Panda Books.

Fairbank

(1983) The United States and China. Fourth edition, enlarged. Cambridge, MA: Harvard University Press.

10.

Fairbank

Goldman

(1998) China: A New History, Enlarged Edition. Cambridge, MA: The Belknap Press of Harvard University Press.

11.

Fairbank

Reischauer

Craig

(1989) East Asia: Tradition & Transformation. Revised edition. Boston, MA: Houghton Mifflin Company.

12.

Falk

(2001) Accountability for war crimes and the legacy of Nuremberg. In: Jokic

(ed.) War Crimes and Collective Wrongdoing. Malden, MA: Blackwell, pp. 113–136.

13.

Farquhar

Berry

(2003) Speaking bitterness: History, media and nation in twentieth century China. Historiography East & West 2(1): 116–143.

14.

Fei

(1981) A Great Trial in Chinese History: The Trial of the Lin Biao and Jiang Qing Counter-Revolutionary Cliques, Nov. 1980–Jan. 1981. Oxford: Pergamon Press.

15.

Garner

(1996) Black’s Law Dictionary: New Pocket Edition, Revised from A–Z. St. Paul, Minnesota: West Group.

16.

Harris

(1981) Chapter III. Images and reality: Human rights and the trial of the Gang of Four. Occasional Papers/Reprints Series in Contemporary Asian Studies 40(3): 40–56.

17.

Hayner

(2002) Unspeakable Truths: Facing the Challenge of Truth Commissions. New York and London: Routledge.

18.

Honeyman

Shakirah

Tiruneh

Hierta

Chirayath

Iliff

Meierhenrich

(2004) Establishing collective norms: Potentials for participatory justice in Rwanda. Peace and Conflict: Journal of Peace Psychology 10(1): 1–24.

19.

Hsiung

(ed.) (1981) Symposium: The trial of the ‘Gang of Four’ and its implications in China. Documents prepared by H Chiu. Occasional Papers/Reprints Series in Contemporary Asian Studies 40(3): 1–130.

20.

Hundt

(2006) In China’s Shadow: The Crisis of American Entrepreneurship. New Haven, CT: Yale University Press.

21.

Kamatali

(2003) The challenge of linking international criminal justice and national reconciliation: The case of the ICTR. Leiden Journal of International Law 16(1): 115–133.

22.

Knappman

(ed.) (1997) Great World Trials. Detroit, MI: Gale Research.

23.

(1997) Rediscovering China: Dynamics and Dilemmas of Reform. Lanham, New York, Boulder, CO, and Oxford: Rowman and Littlefield Publishers, Inc.

24.

Mertus

(2000) Truth in a box: The limits of justice through judicial mechanisms. In: Amadunme

An-Na’im

(eds) The Politics of Memory: Truth, Healing, and Social Justice. London & New York: Zed Books, pp. 142–161.

25.

Miller

(1981) Chapter I: The Cultural Revolution in the dock: The trials in political perspective. Occasional Papers/Reprints Series in Contemporary Asian Studies 40(3): 5–26.

26.

Minow

(1998) Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence. Boston, MA: Beacon Press.

27.

Rigby

(2001) Justice and Reconciliation: After the Violence. Boulder, CO: Lynne Rienner Publishers.

28.

Ruoxi

(1982) Democracy Wall and the Unofficial Journals. Berkeley, CA: Center for Chinese Studies, Institute of East Asian Studies, University of California.

29.

Schrecker

(1991) The Chinese Revolution in Historical Perspective. New York: Praeger.

30.

Shriver

Jr (2005) Honest Patriots: Loving a Country Enough to Remember Its Misdeeds. Oxford and New York: Oxford University Press.

31.

Stover

Megally

Mufti

(2005) Bremer’s “Gordian Knot”: Transitional justice and the US occupation of Iraq. Human Rights Quarterly 27(3): 830–857.

32.

van der Merwe

(2001) National and community reconciliation: Competing agendas in the South African Truth and Reconciliation Commission. In: Biggar

(ed.) Burying the Past: Making Peace and Doing Justice After Civil Conflict. Virginia: Georgetown University Press.

33.

Villa-Vicencio

(2004) Restorative justice: Ambiguities and limitations of a theory. In: Villa-Vicencio

Doxtader

(eds) The Provocations of Amnesty: Memory, Justice and Impunity. Cape Town, South Africa: Africa World Press, pp. 30–50.