CONTESTING HISTORIES: The Historical Accounts of Transitional Justice Institutions

Mass political violence unsettles the past like no other comparable event and the contestation over the historical framing of a conflict continues long after the final peace is signed. Transitional justice institutions actively partake in this contestation as they inevitably broach the most sensitive historical issues. Their conclusions can foster peaceful coexistence or actively forestall public debate about the past. Some scholars have asserted that because truth commissions are released from the criminal justice impulse to adjudicate guilt, they are more able to address the structural causes of the conflict. The authors find to the contrary: truth and reconciliation commissions do not in themselves represent an improvement on courts with respect to the historical accounts they produce. The chapter compares the historical inquiries of domestic and international justice institutions and finds that international institutions are less prone to nationalist distortions and more open to the voices of all those affected by mass violations. International institutions often have capacious rules of evidence, allowing them to admit a wider range of relevant material evidence. Process matters as much as product, and in their investigations, they have gained access to government intelligence archives, revealed the inner workings of a security apparatus, and prompted social movements for accountability. Recognizing the importance of the contested process of history-writing moves us away from a rigid dichotomy between law and history, and towards an actor-centered and empirical approach that focuses on the specific context of the transition from conflict, and the strategies of legal actors that seek to achieve certain identifiable goals through writing history.