Dealing with Wars and Dictatorships [recurso electrónico] Legal Concepts and Categories in Action

Democratic ‘transitions’ in Latin America, Eastern Europe, and South Africa, often studied under the conceptual rubric of ‘transitional justice’, have involved the formation of public policies toward the past that are multifaceted and often ambitious. Recent scholarship rarely questions the concepts and categories transposed from one country to another. This is true both in the language of political life and in the social sciences examining past-oriented public policy, especially policy toward ‘ethnic cleansing’ and the line between the language of political practice, legal analysis, and scholarly discourse has been quite porous. This book examines how these phenomena have been described and understood by focusing recent processes, such as the advent of international criminal justice, in relation to previous postwar and recent purges. By crossing disciplinary approaches and periods, the authors pay attention to three main aspects: the legal or political concepts used (and/or the ones mobilized in the academic work); the circulation of categories, know-how, and arguments; the different levels that can shed light on transitions. Acknowledgments 5 Contents 6 1 General Introduction 11 1.1 Uncertain “Transitional Justice” 13 1.2 The History and Sociology of Purges After WWII 17 1.3 Blind Spots: Categories, Norms, Circulation 19 1.4 Presentation of the Chapters 22 References 28 Part I Life and Death of Concepts and Categories 31 2 “Épuration”: History of a Word 32 2.1 The Revolutionary Paradigm and its Legacy 34 2.2 From Punishment to Épuration 38 References 45 3 Humanity Seized by International Criminal Justice 48 3.1 “Humanity” in the Field of Law: Genealogy 49 3.1.1 Humanity of the Choice of a Legitimate Reference 50 3.1.2 Law to the Core of “War” 54 3.2 Humanity: The Nomination of Shattered Representations 56 3.2.1 Law and Grammar of the Crime 57 3.2.2 Law’s Unspoken Elements 60 References 66 4 Dealing with Collaboration in Belgium After the Second World War: From Activism to Collaboration and Incivism 68 4.1 Introduction 68 4.2 A National Question? 69 4.3 From Activism to Collaboration 74 4.4 Punish or Purge? 81 References 84 5 Transitional Justice as Universal Narrative 86 References 90 6 The Invention of “Transitional Justice” in the 1990s 91 6.1 Introduction 91 6.2 Labeling “Transitional Justice”: Its Emergence as a Phrase 93 6.3 Obtaining Political and Academic Legitimacy. From Salzburg to Washington (1992–1995) 97 6.3.1 The Salzburg Conference and the Project on Justice in Times of Transition (1992) 98 6.3.1.1 Origins of the Conference 99 6.3.1.2 “Shared Experiences” 100 6.3.1.3 The Creation of the Project of Justice in Times of Transition (PJTT) 101 6.3.2 The Kritz Moment (1995) 102 6.3.2.1 An Editorial Project 103 6.4 Germany: A Fertile Ground for Transitional Justice 104 References 106 Part II Implementation of Categories and Savoir-Faire 109 7 “Transitional Justice” and National “Mastering of the Past”: Criminal Justice and Liberalization Processes in West Germany After 1945 110 7.1 “Nuremberg” and the Ambivalences of International “Legalism” 110 7.2 Nuremberg and the Paradoxes of the German Position 114 7.3 Using Criminal Law to “Master the Past”? 120 7.4 Conclusions and Questions 124 References 126 8 Poor Little Belgium? Belgian Trials of German War Criminals, 1944–1951 129 8.1 Culprits and Convicts 129 8.2 Second Offender 131 8.3 Belated Legislative Ambitions 133 8.4 The Judicial Process 139 8.5 Major Trials 142 8.6 Decent and Endearing Alexander von Falkenhausen 145 References 148 9 From Revolution to Restoration. Transnational Implications of the Greek Purge of Wartime Collaborators 150 9.1 Revolution and Counter-Revolution 153 9.2 A Tumultuous Return to Normality 154 9.3 Restoration of the Pre-War Status-Quo 157 9.4 Toward a Model of Republican Transition? 162 References 164 10 The Defense in the Dock: Professional Purges of French Lawyers After the Second World War 167 10.1 From the War to the Resurgence of Republican Legality: Enacting New Principles to Face a Problem Without Precedent 169 10.2 The Self-Purge of French Bar Associations 172 10.3 Professional Purges, Legality, and Memory 176 10.4 Conclusion 178 References 179 Part III Transnational Circulation and Hybridization of Categories 181 11 Law and the Soviet Purge: Domestic Renewal and International Convergences 182 11.1 A New Judicial Campaign 184 11.2 A Nuanced Investigation in the Middle of the Repression Campaign 189 11.3 The Purge and the Evolving Place of Law in the USSR 192 11.4 Soviet Purge Law and International Law Against War Crimes 194 11.5 Conclusion 196 References 197 12 Circulation of Models of épuration After the Second World War: From France to Italy 200 12.1 The Purge in Italy: Categories, Definitions, Periodization 200 12.2 Italy in Context 202 12.3 PropagationCirculation of Models: From France to Italy 205 12.4 Conclusions 208 References 210 13 Reassessing the Boundaries of Transitional Justice: An Inquiry on Political Transitions, Armed Conflicts, and Human Rights Violations 212 13.1 Introduction 212 13.2 Transitional Justice and the Rule of Law in Context 214 13.3 On the Origins of a Conceptual Disorder: The Nature of the Quest for Transitional Justice 217 13.4 Transitional Justice: A Blurred Legal Field? 222 13.5 Transitional Justice in Colombia: What Consequences for the Rule of Law? 227 13.6 Concluding Remarks 232 Table of Cases 234 References 234 14 The Emergence of Transitional Justice as a Professional International Practice 238 14.1 What Justice Does Transitional Justice Provide? 241 14.1.1 In Lieu of Criminal Justice, Another Kind of Justice 241 14.1.2 Using Transitional Justice to Deliberate on History 242 14.2 What Internationalization Does to Transitional Justice 244 14.2.1 The Transitional Universal 245 14.2.1.1 A Tautological Relationship to Contexts 245 14.2.1.2 The Appropriation of a Governmental Apparatus by International Activists 246 14.2.2 Transitional Justice as a Tool of Professionalization 248 14.2.2.1 Attempts at Juridification 251 References 254 15 The Uncertain Place of Purge Within Transitional Justice, and the Limitations of International Law in the World’s Response to Mass Atrocity 256 15.1 The Limits of International Law 258 15.2 Reasons for Non-Juridification 263 15.3 Democratic Opinion: The Continuing Place of Politics 268 15.4 False Leads: An Inventory of Tantalizing Missteps 270 References 271 Front Matter....Pages i-xi General Introduction....Pages 1-20 Front Matter....Pages 21-21 “Épuration”: History of a Word....Pages 23-38 Humanity Seized by International Criminal Justice....Pages 39-58 Dealing with Collaboration in Belgium After the Second World War: From Activism to Collaboration and Incivism....Pages 59-76 Transitional Justice as Universal Narrative....Pages 77-81 The Invention of “Transitional Justice” in the 1990s....Pages 83-100 Front Matter....Pages 101-101 “Transitional Justice” and National “Mastering of the Past”: Criminal Justice and Liberalization Processes in West Germany After 1945....Pages 103-121 Poor Little Belgium? Belgian Trials of German War Criminals, 1944–1951....Pages 123-143 From Revolution to Restoration. Transnational Implications of the Greek Purge of Wartime Collaborators....Pages 145-161 The Defense in the Dock: Professional Purges of French Lawyers After the Second World War....Pages 163-176 Front Matter....Pages 177-177 Law and the Soviet Purge: Domestic Renewal and International Convergences....Pages 179-196 Circulation of Models of Épuration After the Second World War: From France to Italy....Pages 197-208 Reassessing the Boundaries of Transitional Justice: An Inquiry on Political Transitions, Armed Conflicts, and Human Rights Violations....Pages 209-234 The Emergence of Transitional Justice as a Professional International Practice....Pages 235-252 The Uncertain Place of Purge Within Transitional Justice, and the Limitations of International Law in the World’s Response to Mass Atrocity....Pages 253-269 The 20th century saw an unprecedented number of major wars, conflicts, and massive human rights violations. From each emerged the desire to make sense of the recent past (and present) by imagining new ways of dealing with such events. In order to prevent new forms of violence, or to punish the persons responsible of past horrors, various solutions have been imagined, deployed, implemented, and discussed, at different levels. This book is a reflection on the social and historical construction, appropriation, and circulation of categories, norms, and savoir-faire related to the ways social groups and institutions-state, judiciary, professional organizations-confront traumatic events. Even if there is a robust literature on purges and other mechanisms intended to deal with an authoritarian or violent past, written by authors belonging to numerous disciplines and exploring different periods and topics with a variety of theoretical and methodological backgrounds, our goal was to propose a more sociologically oriented model of analysis. Far from being only an intellectual frenzy, this orientation appears to be less normative than most 'post-transitional' approaches and potentially more general than strictly monographic approaches. In doing so, our objective is not only to provide a critical approach, but also to sustain a more realistic view of this highly political and moral domain