Trauma and Vengeance: Assessing The Psychological and Emotional Effects of Post-Conflict Justice

HUMAN RIGHTS QUARTERLY
Trauma and Vengeance: Assessing the Psychological and Emotional Effects of Post-Conflict Justice
David Mendeloff*
AbSTRACT
Do war crimes tribunals or truth commissions satisfy victims of war and atrocity and provide psychological relief from war-induced trauma? Do they make victims less vengeful and less likely to engage in or support violent retribution? Or does the experience of post-conflict justice simply reinforce and exacerbate emotional and psychological suffering? Answers to these questions are central to the logic of truth-tellings peace-promoting effects in post-authoritarian and post-war societies. Indeed, one of transitional justices core arguments is that victims of wartime abuse demand truth and justice. These arguments, however, assume that truth-telling processes, on average, provide psychological and emotional benefits to victims. Some critics have argued, however, that they actually cause more harm than good. Although victims preferences for truth and justice are well documented, we know considerably less about their actual impact. This article assesses that impact by surveying the extant empirical evidence from prominent cases of transitional justice, as well as research in forensic and clinical psychology. It finds a paltry empirical record that offers little support for claims of either salutary or harmful effects of post-conflict justice. Although there is little
* David Mendeloff is Associate Professor of International Affairs at the Norman Paterson School of International Affairs, Carleton University, Ottawa, where he is also Director of the Centre for Security and Defence Studies. Acknowledgements: For comments on earlier drafts I thank Clifford Bob, Eric Brahm, Jean Daudelin, Joel Peters, Naomi Roht-Arriaza, Laura Stovel, Harvey Weinstein, the participants of the Responses to Atrocity Workshop, University of Wisconsin, Madison, 21 April 2007, and the editors of Human Rights Quarterly. Vronique McKinnon and Scott Lofquist-Morgan provided valuable research assistance. I gratefully acknowledge the financial support of the Centre for Security and Defence Studies of the Norman Paterson School of International Affairs, Carleton University. Human Rights Quarterly 31 (2009) 592623 2009 by The Johns Hopkins University Press
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evidence that truth-telling in general dramatically harms individuals, the notion that formal truth-telling processes satisfy victims need for justice, ease their emotional and psychological suffering, and dampen their desire for vengeance, remains highly dubious.
I.
INTRodUCTIoN
Among the myriad proposals to prevent post-conflict societies from relapsing into violence is often some form of official accountability for wartime atrocities through a truth-telling/truth-seeking process. This process usually takes the form of war crimes tribunals, or, increasingly, investigative commissions. Transitional justice advocates claim that truth-telling encourages peace in post-conflict societies in two ways: 1) through political and institutional effectsdemocratization, increased human rights protections, enhanced rule of law, and elimination of impunity; and 2) psychological and emotional effectscreating a sense of justice for victims, healing emotional and psychological trauma, dampening the desire for vengeance, encouraging a greater willingness for reconciliation, and instilling a fear of punishment and shame in potential perpetrators, thereby deterring violent spoilers and the commission of future crimes. Though widely accepted by policymakers and activists, scholars of post-war and post-authoritarian transitions have increasingly scrutinized the growing body of data on transitional justice practices in order to better clarify the relationship between truth-telling and peacebuilding.1 Much of this work has focused on political and institutional
1.
These include both qualitative and quantitative comparative studies on the impact of trials and/or truth commissions on political and institutional developments in transitional societies. E.g., My Neighbor, My eNeMy: Justice aNd coMMuNity iN the afterMath of Mass atrocity (Eric Stover & Harvey M. Weinstein eds., 2004); James Meernik, Justice and Peace? How the International Criminal Tribunal Affects Societal Peace in Bosnia, 42 J. Peace res. 271 (2005); Jack Snyder & Leslie Vinjamuri, Trials and Errors: Principles and Pragmatism in Strategies of International Justice, 28 iNtl security 5 (2003/04); JaMes l. gibsoN, overcoMiNg aPartheid: caN truth recoNcile a divided NatioN? (2004); Hunjoon Kim & Kathryn Sikkink, Explaining the Deterrence Effects of Human Rights Trials (n.d.) (unpublished manuscript, available at http://www.tc.umn.edu/~kimx0759/Kim.Sikkink%20 ISQ_title.pdf); Tricia D. Olsen, Leigh A. Payne, and Andrew G. Reiter, Engaging the Past to Safeguard the Future: Transitional Justice in Comparative Perspective (unpublished book manuscript, on file with author); JaNe e. stroMseth, david WiPPMaN & rosa brooks, caN Might Make rights? buildiNg the rule of laW after Military iNterveNtioNs (2006); Kathryn Sikkink & Carrie Booth Walling, The Impact of Human Rights Trials in Latin America, 44 J. Peace res. 427 (2007); Tove Grete Lie, Helga Malmin Binningsb & Scott Gates, Post-Conflict Justice and Sustainable Peace (The World Bank, Post-Conflict Transition Working Paper No. 5; World Bank Policy Research Working Paper 4191, 2007), available at http://go.worldbank.org/0LQ66BH110; Eric Brahm, Truth and Consequences: The Impact of Truth Commissions in Transitional Societies (2006) (Ph.D. dissertation, University of Colorado at Boulder), available at http://proquest.umi.com/pqdweb?did= 1158523301&sid=2&Fmt=2&clientId=18938&RQT=309&VName=PQD.
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effects. This article assesses truth-tellings purported psychological and emotional effects on victims of war and atrocity and their implications for peace in post-conflict societies. According to advocates of post-conflict accountability, the truth-telling process provides a sense of justice for victims of war and atrocity. In turn, that sense of justice dampens their desire for vengeance, minimizes the risk of retributive violence, and encourages reconciliation among warring groups. Advocates contend that truth-telling also has therapeutic value and can heal the psychological trauma of individual victims. We know, in fact, that war leads to trauma for large numbers of people, including soldiers who fight and civilians who are caught in the crossfire or forced to flee fighting. Wartime brutality and atrocity, such as mass killing, ethnic cleansing, torture, and rape, can also be psychologically traumatic for both soldiers and civilians who survive.2 Indeed, we know that victims and survivors want some form of justice to be done for atrocities committed against them or their loved ones. Several studies have convincingly demonstrated that in many post-conflict societies victims and survivors have strong preferences for justice and accountability through truth-telling. For example, in a number of surveys and interviews of Croatian and Bosnian victims of the Balkan wars of the 1990s, virtually all respondents showed support for the principle of war crimes prosecutions3 and the vast majority supported the work of the International Criminal Tribunal for the former Yugoslavia (ICTY).4 Surveys of victims of human rights abuse in Argentina, Chile, El Salvador, Guatemala, South Africa, and Uganda have also found significant demand for justice and accountability in the aftermath of violent conflict.5 Although these data are
2. The impact of recent civil wars on civilians is particularly well-documented. See Derrick Silove, The Psychosocial Effects of Torture, Mass Human Rights Violations, and Refugee Trauma: Toward an Integrated Conceptual Framework, 187 J. Nervous & MeNtal disease 200 (1999). While there is likely to be great variation depending on the particular conflict and target groups, epidemiological studies have estimated that 1525 percent of individuals exposed to a significant trauma will experience some form of clinical psychological illness (anxiety, depression, or PTSD). Mark Creamer & Meaghan ODonnell, Post-Traumatic Stress Disorder, 15 curreNt oPiNioN Psychiatry 163 (2002). Some studies have estimated that it could reach as high as 37 percent. Joop T. V. M. de Jong et al., Lifetime Events and Posttraumatic Stress Disorder in 4 Postconflict Settings, 286 JaMa 555 (2001). E.g., Metin Basog et al., Psychiatric and Cognitive Effects of War in Former Yugoslavia: lu Association of Lack of Redress for Trauma and Posttraumatic Stress Reactions, 294 JAMA 580 (2005). E.g., Sanja Kutnjak Ivkovic Justice by the International Criminal Tribunal for the Former , Yugoslavia, 37 staNford J. iNtl l. 255, 310 (2001); See also Eric Stover, Witnesses and the Promise of Justice in The Hague, in My Neighbor, My eNeMy, supra note 1, at 104, 10506. vctor esPiNoza cuevas, Mara luisa ortiz roJas & Paz roJas baeza, truth coMMissioNs: aN uNcertaiN Path? coMParative study of truth coMMissioNs iN argeNtiNa, chile, el salvador, guateMala aNd south africa froM the PersPectives of victiMs, their relatives, huMaN rights orgaNisatioNs aNd exPerts, ch. 3 (2002), available at http://www.apt.ch/publications/library/ Truth%20Comm_Executive%20Summary.pdf; PhuoNg PhaM, Patrick viNck, Marieke Wierda,
3. 4.
5.
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limited, the general finding is borne out by forensic psychological studies that show that victims of crime desire some form of justice.6 Victims and survivors, therefore, have a clear preference for truth-telling, and many believe that it will bring relief from emotional and psychological pain, anguish, and suffering. Furthermore, it is believed that denying victims an opportunity to achieve justice or heal their psychological and emotional wounds through a truth-telling process perpetuates cycles of violence. At the same time, however, some observers have argued that truth-telling itself may actually produce psychological and emotional harm by retraumatizing victims. Those observers have warned that truth-telling may be counterproductive in the search for reconciliation and long-term peace in war-torn societies. Several questions remain, however. Does truth-telling in fact have such salutary or harmful effects? Do victims actually experience the anticipated psychological and emotional benefits? Are victims and survivors positive expectations of the truth-telling process generally met after the truth has been told and justice dispensed? Does truth-telling in fact soothe the desire for vengeance, and thus reduce the willingness to engage in acts of violent retribution, or to support those who do? Alternatively, does formal truthtelling exacerbate victims psychological trauma, rather than heal it? Does truth-telling make victims less, rather than more, angry and vengeful, and less willing to embrace social and political reconciliation? Surprisingly, the transitional justice and peace building literatures have failed, with very few exceptions, to ask these questions.7 Instead, truth-telling proponents have assumed that because victims want truth and justice, formal truth-telling can actually deliver truth and justice, and that it must, therefore, be beneficial for victims (and ultimately for society) once the truth has been told and justice dispensed. Alternatively, critics of truth-telling assume that because victims may be harmed by publicly describing their experiences, the exercise is somehow detrimental to lasting peace. This article critically
6. 7.
eric stover & adriaN di giovaNNi, iNtl ctr. traNsitioNal Justice & huMaN rights ctr., uNiv. of cal., berkeley, forgotteN voices: a PoPulatioN-based survey of attitudes about Peace aNd Justice iN NortherN ugaNda (2005). Ulrich Orth, Punishment Goals of Crime Victims, 27 laW & huM. behav. 173 (2003). Noteworthy exceptions from a more broadly comparative perspective include Raquel Aldana, A Victim-Centered Reflection on Truth Commissions and Prosecutions as a Response to Mass Atrocities, 5 J. huM. rts. 107 (2006); and Jamie OConnell, Gambling with the Psyche: Does Prosecuting Human Rights Violators Console Their Victims?, 46 harv. iNtl l.J. 295 (2005). A small number of studies have sought to address this question in individual cases, including Peru (Lisa J. Laplante & Kimberly Theidon, Truth with Consequences: Justice and Reparations in Post-Truth Commission Peru, 29 huM. rts. Q. 228 (2007)); Rwanda (Karen Brounus, Truth-Telling as Talking Cure? Insecurity and Retraumatization in the Rwandan Gacaca Courts, 39 security dialogue 55 (2008)); and South Africa and former-Yugoslavia, which are discussed in greater detail below.
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examines these competing assumptions by assessing what we know about the relationship between truth-telling, psychological healing, and peace building. The answer is not terribly satisfying. We know relatively little about the individual psychological and emotional effects of national truth-telling and accountability mechanisms, or about victims experiences with criminal justice more broadly. There are too few rigorous and systematic studies to conclude that truth-telling has the psychological benefits claimed by proponents, or the harms charged by critics. Though the available data beyond the merely anecdotal and impressionistic is limited, the very best studies, while they do not entirely confirm critics most pessimistic assessments, raise doubts about proponents more optimistic claims. In short, although there is little evidence that truth-telling in general dramatically harms individuals, the notion that formal truth-telling processes satisfy victims need for justice, ease their emotional and psychological suffering, and dampen their desire for vengeance remains highly dubious. The three sections below will expand this argument. Section II specifies the causal logic of truth-tellings purported psychological and emotional impact, both beneficial and harmful. Section III tests these causal claims against the best-available empirical evidencedirect evidence from the seminal cases of post-conflict truth-telling (South Africa and former Yugoslavia), and indirect evidence from forensic and clinical psychology on the treatment of psychological trauma and victims experiences with domestic criminal justice proceedings. Although there may be important differences between the experience of victims of violent crime and victims of wartime atrocity, there is an absence of well-developed empirical studies that directly address the relationship between national truth-telling in post-conflict societies and the psychological health and emotions of victims and survivors of war and atrocity. In that void, then, the research from clinical and forensic psychology offers the best available data we have to evaluate some of the broader claims of truth-tellings impact. In short, Section III answers two simple questions: First, based on the available empirical evidence, does truth-telling have the psychological and emotional effects on victims of war and atrocity that proponents and critics claim? Second, in the absence of compelling evidence to answer this question, should we reasonably expect to observe these psychological and emotional effects? The answer to both questions is a heavily qualified, no. Section IV assesses the theoretical and policy implications of the analysis for truth-tellings role in post-conflict peace building. While the article focuses primarily on the link between truth-telling and victims psychological health and perceptions of justice, the more critical issue for those concerned with lasting peace in war-torn societies is the link between those psychological and emotional effects and post-conflict peace building. In many respects,
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the logic of truth-telling turns on the validity of claims about its individual psychological and emotional effects. As a result, assessing those claims and their underlying assumptions is critical to evaluating the larger truth-telling and accountability enterprise, and better understanding its place in postconflict peace building. The concluding section shows how the analysis of truth-tellings psychological and emotional impact on victims reveals even larger gaps in our knowledge of truth-tellings peace-promoting effects. This is particularly true regarding assumptions about the role of revenge and violent retribution in the stability of post-war societies. The concluding section also illuminates a serious policy dilemma: namely the tension between efforts needed to promote the emotional well-being and psychological healing of individual victims, and policies designed to maintain peace in the aftermath of war. Whether such tensions can be reconciled through reform of postconflict justice institutions and practices remains open to debate. II. TRUTH, PEACE, ANd VIoLENCE: THE CAUSAL LoGIC of TRUTH-TELLINGS PSYCHoLoGICAL ANd EMoTIoNAL IMPACT oN VICTIMS Much of the transitional justice literature is sanguine about the benefits of accountability through formal truth-telling (either trials or truth commissions) for conflict resolution, reconciliation, and democratic development in post-conflict societies, and warns of the dangers of failing to confront the past.8 Moreover, this literature posits a wide-range of mechanisms by which truth-telling dampens social violence and reduces the likelihood of a resumption of civil war in war-torn societies.9 The logic of many of these causal mechanisms rests on a set of specific psychological and emotional effects of truth-telling (or the absence of truth-telling) on victims of war and atrocity. Figure 1 details five main purported psychological and emotional effects and their impact on the likelihood of peace or violence.10
8. For more skeptical views see, for example, Laurel E. Fletcher & Harvey M. Weinstein, Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation, 24 huM. rts. Q. 573 (2002); Snyder & Vinjamuri, supra note 1; David Mendeloff, TruthSeeking, Truth-Telling and Post-Conflict Peacebuilding: Curb the Enthusiasm?, 6 iNtl stud. rev. 355 (2004); Meernik, supra note 1; Brahm, supra note 1; heleNa cobbaN, aMNesty after atrocity?: healiNg NatioNs after geNocide aNd War criMes (2007); Erin Daly, Truth Skepticism: An Inquiry Into the Value of Truth in Times of Transition, 2 iNtl J. traNsitioNal Just. 23 (2008). Mendeloff, supra note 8. Because the transitional justice literature also makes explicit claims about the dangers to victims of a failure to implement post-conflict accountability mechanisms, Figure 1 articulates the causal logic of those arguments as well. However, while the causal logic of the benefits of truth-telling (1, 2) and the harm of not engaging in truth-telling (4, 5) are analytically distinct, the arguments are essentially two sides of the same coin.
9. 10.
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figure 1. Truth, Peace, and Violence: The Causal Logic of Truth-Tellings Psychological and Emotional Impact on Victims of War and Atrocity
Psychological and Emotional Benefit of Truth-Telling (TT) Diminished desire for vengeance Diminished desire for vengeance Decreased tolerance for retributive violence Increased propensity for reconciliation Decreased tolerance for retributive violence Increased propensity for reconciliation Increased likelihood of peace Increased likelihood of peace
(1) TT
Heightened sense of justice
(2) TT
Healing of psychological trauma
Psychological and Emotional Harm of Truth-Telling (TT) Heightened desire for vengeance Heightened tolerance for retributive violence Decreased propensity for reconciliation Increased risk of resumption of violent conflict / war
(3) TT
Retraumatization
Psychological and Emotional Harm of Not Engaging in Truth-Telling (No TT) Heightened desire for vengeance Heightened desire for vengeance Heightened tolerance for retributive violence Heightened tolerance for retributive violence Decreased propensity for reconciliation Decreased propensity for reconciliation Increased risk of resumption of violent conflict / war Increased risk of resumption of violent conflict / war
(4)
No TT
Heightened sense of injustice
(5) No TT
Continued trauma
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A. Psychological and Emotional benefit of Truth-Telling The transitional justice literature posits two main psychological and emotional benefits of truth-telling. First, truth-telling provides a sense of justice to victims (1). This sense of justice in turn lessens feelings of anger, a desire for vengeance, and a sense of grievance that if left unchecked could otherwise lead to acts of vigilante justice. Reducing these negative emotions, therefore, makes victims and survivors more amenable to non-violent forms of dispute resolution. This increases the potential for social reconciliation and long-term societal peace. Alternatively (4), denying victims the opportunity to have their experiences publicly heard, will generate a sense of injustice. This in turn lowers victims threshold for violent retribution or tolerance of violent spoilers,11 which decreases the likelihood of reconciliation, thereby increasing the risk of renewed violent societal conflict. The second major purported psychological benefit of truth-telling is its therapeutic value (2). Accountability through truth-telling, proponents argue, helps to heal psychological trauma. Truth-telling dampens any retributive urges and makes victims more forgiving, more tolerant, and more likely to engage in or support reconciliatory and cooperative behavior at the national political level. Alternatively (5), when victims dont have access to truthtelling, their psychological healing is hindered, their tolerance for violent retribution increases, and the opportunities for social reconciliation are fewer and more difficult. Thus, truth-tellings psychological and emotional benefits are seen to promote both negative and positive peace.12 b. Psychological and Emotional Harm of Truth-Telling In contrast to the benefits mentioned above, more critical analyses warn of truth-tellings potential harm to victims, particularly the risk of retraumatization.13 While few have carefully articulated the causal logic of the societal risks
11. Spoilers refers to individuals or groups who believe that an ongoing peace process, or the terms of a negotiated peace settlement, threatens their power, worldview, and interests, and use violence to undermine attempts to achieve it. Stephen John Stedman, Spoiler Problems in Peace Processes, iNtl security, Fall 1997, at 5, 5. The classic statement on negative and positive definitions of peace is Johan Galtung, Violence, Peace, and Peace Research, 6 J. Peace res. 167 (1969). See also Elizabeth M. Cousens, Introduction to PeacebuildiNg as Politics: cultivatiNg Peace iN fragile societies 1 (Elizabeth M. Cousens & Chetan Kumar with Karin Wermester eds., 2001); Charles T. Call, Knowing Peace When You See It: Setting Standards for Peacebuilding Success, 10 civ. Wars 173 (2008). See, e.g., Brounus, supra note 7; Brandon Hamber, The Burdens of Truth: An Evaluation of the Psychological Support Services and Initiatives Undertaken by the South African Truth and Reconciliation Commission, 55 aM. iMago 9 (1998); Priscilla b. hayNer, uNsPeakable truths: coNfroNtiNg state terror aNd atrocity (2001); Martha MiNoW, betWeeN veNgeaNce
12.
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of individual retraumatization, one can infer the logic (3). Retraumatization supposedly has the same effects as when truth-telling is delayed or denied. That is, the desire for vengeance will remain unchecked, violent solutions to social and political conflict will seem more attractive, and opportunities for cooperation and reconciliation will be more limited. These effects contribute to an increased risk of continuing or renewed violent conflict. Few proponents claim that accountability through a formal truth-telling process is a panacea for all the ills of post-conflict societies. Nonetheless, many consider truth-telling to be a critical and often necessary component of a comprehensive and successful peace building strategy.14 Similarly, not all truth-telling advocates claim that psychological and emotional benefits, particularly to victims mental health, follow truth-telling in all cases. While much of the earlier transitional justice literature spoke casually of the cathartic effects of truth-telling, many scholars have expressed some skepticism of the therapeutic benefits of either trials or truth commissions.15 Despite these qualifications, however, popular discourse and much of the scholarly work surrounding truth-telling is laden with references to its therapeutic potential for victims. Although this is particularly true of restorative justice proponents who advocate for creation of truth commissions, retributive justice proponents also make such claims. They argue that accountability benefits victims because victims want justice to be done. Recently, for example, upon the death of Slobodan Miloevic in the midst of his trial at The Hague, the ICTYs chief prosecutor, Carla Del Ponte, proclaimed that his death deprives the victims of the justice they need and deserve.16 Nonetheless, neither those who argue that truth-telling has important psychological benefits, nor those who are more skeptical of such claims, have offered substantial evidence to support their arguments. The next section attempts to test these claims by assessing the available empirical evidence both direct evidence from the seminal cases of post-conflict truth-telling, and indirect evidence from clinical and forensic psychology on the experiences of victims of violent crime.
14. 15. 16.
aNd forgiveNess: faciNg history after geNocide aNd Mass violeNce (1998); Julie Mertus, Only a War Crimes Tribunal: Triumph of the International Community, Pain of Survivors, in War criMes: the legacy of NureMberg 229 (Belinda Cooper ed., 1999); OConnell, supra note 7, at 325, 33234; Eric Stover, supra note 4, at 10708. See, e.g., Priscilla B. Hayner, Past Truths, Present Dangers: The Role of Official Truth Seeking in Conflict Resolution and Prevention, in iNterNatioNal coNflict resolutioN after the cold War 338, 361, 364368 (Paul C. Stern & Daniel Druckman eds., 2000). Fletcher & Weinstein, supra note 8, at 59394. International Criminal Tribunal for the Former Yugoslavia (ICTY), Press conference by the ICTY prosecutor, The Hague (12 Mar. 2006), available at http://www.un.org/icty/ pressreal/2006/speech/cdp-060312e.htm.
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III. ASSESSING THE EffECTS of TRANSITIoNAL JUSTICE oN VICTIMS of WAR ANd ATRoCITY Despite nearly two decades of experience with prosecutions of war crimes and genocide, the existence of many post-war truth commissions, and the frequency of claims about the commissions psychological benefits, there are almost no systematic studies of truth-tellings psychological impact on victims of war and atrocity and the implications for post-conflict peace building. This section surveys the available evidence to provide a first-cut test of the validity of claims about truth-tellings emotional and psychological impact on victims. While each of the causal arguments and their causal links detailed in Figure 1 need to be examined against the empirical record, this article focuses primarily on the empirical validity of the initial causal claims (highlighted in Figure 1). That is, this article focuses on the relationship between truth-telling and a sense of justice or injustice, psychological healing versus retraumatization, and feelings of vengeance among victims and survivors. Specifically, this section asks two main questions. First, does past experience with post-conflict truth-telling demonstrate the psychological and emotional effects on victims that are often claimed? Second, in the absence of evidence that answers this question directly, should we reasonably expect to observe these effects, all things being equal? To answer the first question, this section examines the extant empirical literature in transitional justice on victim experiences with post-conflict truth-telling by focusing on two seminal cases: the South African Truth and Reconciliation Commission (TRC), and the ICTY. This article focuses on these cases for three reasons. First, and most important, these two cases have generated an extensive empirical literature, particularly on victims experiences. Second, they each represent a different approach to accountability through truth-telling. Thus, they offer variation and speak to debates over the relative merits of retributive versus restorative justice approaches. While transitional justice scholars increasingly view both truth-telling approaches as complementary, rather than competing,17 there remains a tendency to see victim-centered truth commissions as more therapeutic and beneficial to victims than an adversarial criminal tribunal.18 On the other hand, proponents of prosecutions tend to argue that because trials more directly dispense justice, they are ultimately more satisfying for victims. The final
17.
18.
See, e.g., Naomi Roht-Arriaza, The New Landscape of Transitional Justice, in traNsitioNal Justice iN the tWeNty-first ceNtury: beyoNd truth versus Justice 1 (Naomi Roht-Arriaza & Javier Mariezcurrena eds., 2006); Bronwyn Anne Leebaw, The Irreconcilable Goals of Transitional Justice, 30 huM. rts. Q. 95 (2008). MiNoW, supra note 13, at 6674.
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reason to focus on these seminal cases is that they offer the best-case tests of truth-tellings impact. If we expect to see benefit or harm from truth-telling, then we should see such effects in these cases. To answer the second question, which posits whether we should even expect to see these effects, this article turns to broader research in two areas: First, the large body of research in clinical psychology on the nature and treatment of psychological trauma, and, second, research in forensic psychology on victims experiences with ordinary Western criminal justice systems and with more informal restorative justice processes. While the institutional context and nature of crimes in a Western criminal justice setting differ from post-conflict environments, the findings from the broader psychological literature should allow for inferences about the plausibility of the causal claims of both proponents and critics of truth-telling. Indeed, despite the qualitative differences between ordinary Western criminal justice and post-conflict justice, the former should present a much easier test of the claims of truth-tellings impact on victims. If, for example, we rarely see victim satisfaction with Western criminal justice systems, then we would rightly question the assumption that a war crimes trial is better able to satisfy victims of wartime atrocity.19 A. does past experience with truth-telling demonstrate the psychological and emotional effects that are often claimed? Evidence from South Africa and the former Yugoslavia. Evidence from South Africa. Did testifying at the TRC provide victims with a sense of justice or reduce their anger and desire for vengeance? Did it have any therapeutic value in lessening symptoms of psychological trauma? Much has been written about various aspects of the TRC in South Africa, but few studies have actually sought to assess the psychological impact of the TRC on victims, or to do so systematically. Those that do exist (with a few exceptions noted below) are rather unsatisfying, both in terms of the evidence they offer and the conclusions they reach. Mary Burton, Trudy de Ridder, and Piers Pigou20 for example, have offered general impressions of
19. 20. For a contrary view on the substantive differences between ordinary Western justice and transitional justice see Eric A. Posner & Adrian Vermeule, Transitional Justice as Ordinary Justice, 117 harvard l. rev. 761 (2004). Mary Burton, The South African Truth and Reconciliation Commission: Looking Back, Moving Forward, in Past iMPerfect: dealiNg With the Past iN NortherN irelaNd aNd south africa 13 (Brandon Hamber ed., 1998); Trudy de Ridder, The Trauma of Testifying: Deponents Difficult Healing Process, 6 track tWo 30, 3034 (1997), available at http:// www.ccr.uct.ac.za/archive/two/6_34/p30_deridder.html; Piers Pigou, False Promises and Wasted Opportunities?: Inside South Africas Truth and Reconciliation Commission, in coMMissioNiNg the Past: uNderstaNdiNg south africas truth aNd recoNciliatioN coMMissioN 37 (Deborah Posel & Graeme Simpson eds., 2002).
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the TRCs impact based on professional experiences working with the TRC or with agencies that provided counseling support to those who testified.21 Other work also relies heavily on these impressionistic accounts, on brief vignettes, or on first or second-hand anecdotes about victims who have testified.22 None of these studies are systematic in their assessments, failing to distinguish between truth-tellings impact on victims feelings of anger and revenge, and its impact on victims clinical psychological distress. Those caveats aside, what does this anecdotal evidence indicate? Virtually all of these studies reach the same conclusions: some victims benefited from the TRC process because it was empowering and offered a sense of relief and closure. For others, it was at a best a profound disappointment, at worst a cause of renewed emotional distress or retraumatization. Almost all studies express some reservations about the TRCs true healing power. But because these studies are impressionistic, anecdotal, and generally unsystematic in their analyses, they are ultimately unsatisfying. We do not know, for example, how many victims likely benefited from their TRC experiences, or how many might have been harmed by them. The actual numberseven rough estimatesare maddeningly vague. Priscilla Hayner, for example, has argued that [i]n South Africa many survivors told me that they could only forgive their perpetrators if they were told the full truth; almost incomprehensibly, hearing even the most gruesome details of the torture and murder of a loved one somehow brought them some peace.23 Brandon Hamber has argued that [t]he TRC has undoubtedly begun a healing process for some, and for a fortuitous few it may have spurred on a complete recovery.24 Of more negative assessments, TRC Commissioner Piers Pigou, estimated that no more than 10 percent of those who testified actually learned any new information from the process and therefore received
21. Another study, based on a series of workshops designed to elicit victims and survivors impressions of the TRC process in order to make recommendations to the TRC in advance of its Reparations and Rehabilitation Policy and final report, says almost nothing concrete about the impact of victims experiences on their desire for vengeance or their psychological well-being. The study interprets and aggregates individual responses, and provides no raw data on which these conclusions were drawn. braNdoN haMber, traggy MaePa, tlhoki MofokeNg & hugo vaN der MerWe, ctr. for the study of violeNce aNd recoNciliatioN & khuluMaNi suPPort grouP, survivors PercePtioNs of the truth aNd recoNciliatioN coMMissioN aNd suggestioNs for the fiNal rePort (1998), available at http://www.csvr.org. za/wits/papers/papkhul.htm. E.g., Catherine C. Byrne, Benefit or Burden: Victims Reflections on TRC Participation, 10 Peace & coNflict: J. Peace Psychol. 237 (2004); Hayner, Past Truths, Present Dangers, supra note 14; hayNer, uNsPeakable truths, supra note 13, at 13353; Alfred Allan & Marietjie M. Allan, The South African Truth and Reconciliation Commission as a Therapeutic Tool, 18 behav. sci. & l. 459 (2000); Hamber, The Burdens of Truth, supra note 13; Brandon Hamber, Does the Truth Heal? A Psychological Perspective on Political Strategies for Dealing with the Legacy of Political Violence, in buryiNg the Past: MakiNg Peace aNd doiNg Justice after civil coNflict 131 (Nigel Biggar ed., 2001). Hayner, Past Truths, Present Dangers, supra note 14, at 354 (emphasis added). Hamber, Does the Truth Heal?, supra note 22, at 135 (emphasis added).
22.
23. 24.
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the truth they were promised.25 de Ridder, a psychologist who counseled victims, opined that a worrying number of those who testified at the TRC experienced some initial relief, but after several weeks experienced a return and intensification of symptoms associated with the original violations as well as the onset of new symptoms that may be related to an actual retraumatization caused by retelling the story.26 A limited number of more sophisticated studies conducted on victims responses to the TRC offer a bit more insight into its impact on victims sense of anger, revenge, and into their psychological health. A 2000 study by Hamber, Dineo Nageng, and Gabriel OMalley, based on interviews with twenty survivors who were involved with the TRC, found that while 60 percent of respondents reported optimism about the benefits of truth-telling before they gave or submitted testimony, only 10 percent had a positive view after the fact. Thirty-five percent actually had a negative view of the experience and 55 percent were ambivalent about it. Seventy percent reported feeling let down and disappointed with the outcome.27 Of those who testified (eight out of twenty), half felt regret for doing so or felt cheated by the process, while the other half felt relief and comfort. The majority felt that known perpetrators should be jailed, and a small number (10 percent) wanted to see them put to death. A study by Catherine Byrne, based on interviews with thirty survivors who participated in the TRC, found similar results. Overall, a small number of those interviewed viewed [the TRC] as a positive and empowering experience, although for many others it appeared to be a painful and disempowering process . . .28 Specifically, 23.3 percent of those who participated in the study felt they benefited from and shared positive reactions regarding the experience of testifying.29 Eighty percent, on the other hand, felt the process involved considerable emotional pain.30 As in the Hamber et al. study, significant numbers (33.3 percent to 46 percent) of participants felt that various expectations were not fulfilled by the process and they left feeling profoundly disappointed.31
25. 26. 27. 28. 29. 30. 31. Pigou, supra note 20, at 37. de Ridder, supra note 20. Brandon Hamber, Dineo Nageng & Gabriel OMalley, Telling It Like It Is . . .: Understanding the Truth and Reconciliation Commission From the Perspective of Survivors, 26 Psychol. iN socy 18 (2000). Byrne, supra note 22, at 237. Id. at 243. One problem with the figure is that Byrne does not distinguish, as does the Hamber et al., Telling It Like It Is, supra note 27 study, between those who testified and those who merely submitted written statements. This is a critical oversight. Byrne, supra note 22, at 246. Id. at 24749. Participants in focus groups organized by Ruth Picker expressed a similar view of dashed expectations. ruth Picker, ctr. for the study of violeNce aNd recoNciliatioN, victiMs PersPectives About the huMaN rights violatioNs heariNgs (2005), available at http:// www.csvr.org.za/wits/papers/pappick.htm.
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Though the Hamber et al. and Byrne studies are more soundly based than the majority of studies on the TRC, their small sample size and other methodological limitations heavily qualify their conclusions.32 Only one studyDavid Backers systematic and methodologically rigorous examination of victims responses to the TRCprovides truly compelling evidence.33 Backers analysis is based on survey data of more than 400 victims and survivors of political violence in Johannesburg and Cape Town, as well as smaller focus groups. Unlike other studies, it carefully parses victims perceptions of the process and the outcome, assesses their satisfaction with the TRC in meeting their own expectations, and also assesses their perceptions of justice.34 Backers study is also unique in that it examines all victimsthose that gave testimony to the TRCs Human Rights Violations Committee, those that submitted only written statements, and those who were not involved in the TRC process at all. Backers study essentially confirms the observations of Hamber et al. and Byrne.35 Victims report near universal disappointment and a great deal of ambivalence, with the process: Despite modest differences in their initial expectations, more substantial variation in their reactions as the process unfolds, and various highs and lows along the way, the three cohorts of victims ultimately wind up with the same level of dissatisfaction.36 In general, none of the groups of victims felt that justice had been served.37 While the nature of participation with the TRC did have a measurable impact on that perceptionmore so than the nature of the abuse that was suffered or whether perpetrators had applied for amnestythe impact was quite modest. Those who testified were only slightly less disenchanted than those who did not.38
32.
33.
34. 35. 36. 37. 38.
Both the Hamber et al., Telling It Like It Is, supra note 27 and Byrne, supra note 22 studies suffer similar methodological weaknesses: they rely on very small, pre-selected samples, which included only survivors who testified or gave written testimony, rather than all victims regardless of their participation in the TRC process. Nor were the samples randomly selected: participants were recruited through advertising or community agencies, a method that has been used in other major studies of victims of human rights violations. Debra Kaminer, Dan J. Stein, Irene Mbanga & Nompumelelo Zungu-Dirwayi, The Truth and Reconciliation Commission in South Africa: Relation to Psychiatric Status and Forgiveness Among Survivors of Human Rights Abuses, 178 brit. J. Psychiatry 373 (2001). David A. Backer, The Human Face of Justice: Victims Responses to South Africas Truth and Reconciliation Commission Process (2004) (Ph.D. dissertation, University of Michigan) (on file at the Buhr Shelving Facility, University of Michigan), available at http:// proquest.umi.com/pqdweb?did=813767731&sid=1&Fmt=2&clientId=18938&RQT=30 9&VName=PQD. Id. at 7. Hamber et al., Telling It Like It Is, supra note 27; Byrne, supra note 22. Backer, supra note 33, at 193. Id. at 219. Id. at 22340.
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What do these studies tell us about the impact on feelings of vengeance and psychological trauma? They offer slightly more precise data than the impressionistic studies, but are still not completely satisfying. In regard to the desire for retribution, the data are inconclusive. If most victims demand that perpetrators be jailed, for example, does this mean that the TRC has failed to cool their retributive desires? This is extremely difficult to say. When Backer examined the relationship between victims sense of justice and their desire for vengeance, he uncovered an intriguing finding: among those surveyed, a greater sense of justice was associated with a reduced desire for vengeance, as one would intuitively expect, while a lower sense of justice had only a modest association with an increased desire for retribution.39 Thus, Backer concludes, even though many victims were not especially satisfied with the redress of their violations, this discontent is unlikely to exacerbate their enmity towards perpetrators, much less result in retribution.40 With regard to psychological relief, the evidence is mixed. Though Byrne finds a high number of those who reported emotional pain with the process, this is hardly surprising and does not necessarily disconfirm the argument that long-term relief of psychological distress should result from a truth-telling process.41 Indeed, Backers research uncovered a much more nuanced picture of victims emotional response to the process. Though high numbers (56 percent) reported that giving a statement was very upsetting, an even higher number (64 percent) believed they gained something positive from the experience, and almost 70 percent indicated that if they had known in advance what it would be like to submit a statement, they still would have done it.42 However, none of the studies described above systematically examined the relationship between the mental health of victims and their participation with the TRC. This was the specific objective of at least one rigorous epidemiological study by Debra Kaminer, Dan Stein, Irene Mbanga, and Nompumelelo Zungu-Dirwayi, which assessed the mental health of 134 survivors who gave public, closed, or no testimony to the TRC. This study found that testifying had no effect on victims psychological health.43 Sixty-three percent of the sample had some clinical psychological disorder (depression, PTSD,
39. 40. 41. 42. 43.
Id. at 251. Id. Byrne, supra note 22, at 246. Backer, supra note 33, at 183. Kaminer et al., supra note 32, at 373, 375. Similar to Backer, supra note 33, Kaminer et al., supra note 32, use a sufficiently large sample that includes survivors who did and did not participate in the TRC. However, like the Hamber et al., Telling It Like It Is, supra note 27 and Byrne, supra note 22 studies, the sample was not randomly selected.
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or anxiety disorder), and most had multiple diagnoses. Some people clearly felt relief or distress at testifying, as the impressionistic studies note. Overall, however, across a broad sample of victims of Apartheid-era human rights abuse, the TRC had no measurable psychological impact either way.44 Evidence from former Yugoslavia. A great deal of literature exists on the impact of the Balkan wars on civilians and the workings of the ICTY. Some of this literature addresses the psychological impact on victims. While much of the legal literature assumes that the ICTY provides justice to victims, almost no systematic evidence exists to corroborate that claim. To the extent that the voluminous body of work on the war and the ICTY does address the victims perceptions, it is largely journalistic, anecdotal, and impressionistic.45 Eric Stovers study of eighty-seven witnesses who appeared at the ICTY is better than most in that its conclusions are grounded in a large number of interviews, rather than mere anecdote.46 He concludes that although most victims derived some benefit from testifying, none reported any lasting psychological relief: The few participants who experienced cathartic feelings immediately or soon after testifying before the ICTY found that the glow quickly faded once they returned home to their shattered villages and towns.47 Many witnesses felt abandoned and betrayed, and had dashed hopes and expectations of achieving justice and truth from the process.48 The study however remains entirely impressionistic. Stover fails to parse more precisely the data gathered from his interviews. For example, he does not indicate how many of the witnesses offered testimony as victims of wartime atrocity; how many felt rage, anger, and betrayal; and how many felt that the proceedings were psychologically beneficial to them. A more methodologically-sophisticated study by Sanja Kutnjak Ivkovic offers more concrete data.49 The study reports on the results of semi-structured interviews with two samples. The first consisted of nearly 263 largely Croatian refugees and displaced persons residing in Zagreb. The second consisted of nearly 300 largely Bosniac (or self-declared) Muslim residents of Sarajevo.50 In both samples roughly 70 percent reported themselves as victims of wartime abuse or atrocity.51 The interviews revealed that the
44. 45.
46. 47. 48. 49. 50. 51.
Kaminer et al., supra note 32, at 37475. A recent example is Dan Saxon, Exporting Justice: Perceptions of the ICTY Among the Serbian, Croatian, and Muslim Communities in the Former Yugoslavia, 4 J. huM. rts. 559 (2005), which purports to explain Serb, Croat, and Muslim community reaction to the ICTY, yet relies only on interviews with ICTY analysts and prosecutors as evidence of individual or group perceptions. Stover, supra note 4, at 105. Id. at 107. Id. at 107, 11415, and 11718. Ivkovic supra note 4. , Id. at 29496. Id. at 296.
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overwhelming majority believed the ICTY to be fair and that they would receive procedural and substantive justice from the proceedings.52 These data are consistent with what we already know from other cases, including South Africavictims of abuse want justice, and are generally optimistic about achieving it, in this case through criminal tribunals. However, similar to the findings from South Africa and Stovers analysis, the actual outcome of the process is often a disappointment. Large numbers in Ivkovic samples felt that the judgments were generally fair, but the punishments meted out by The Hague were too light. Ninety percent of Zagreb respondents and nearly 97 percent of Sarajevo respondents said that the death penalty or life imprisonment was the only just punishment for those found guilty. Forty percent and 34.5 percent of the respective samples said that a death sentence was the most appropriate punishment.53 These figures, however, were for the general sample population. When the response of those who reported traumatic experiences is examined, there is no statistically-significant correlation. In other words, victimization is not necessarily an indicator of desire for harsher or softer penaltiesa finding that is very similar to Backers observations in South Africa.54 A more recent and comprehensive survey by Miklos Biro et al. offers a similar finding: support for the ICTY and war crimes trials was predicated primarily on ethnicity, while victimization simply did not correlate.55 Serbs tended to have a low opinion of the ICTY and Bosniacs had a fairly high opinion. The level of traumatic experience, however, was not significant.56 As the authors note with some understatement, Since the international community believe that trials are for the victims and that they promote reconciliation, this finding is very provocative.57 What do these results reveal, then, about victims desire for revenge? I asked several questions about what would be considered an appropriate punishment and why, writes Ivkovic :
One person who decided not to participate in the survey, summarized the opinion expressed by almost all of the respondents: They [violators of international humanitarian laws] should be tried unconditionally; these were the criminals
52. 53. 54. 55. 56.
57.
Id. at 310, 320. Id. at 323. Id. at 325; see Backer, supra note 33, at 251. Miklos Biro et al., Attitudes Toward Justice and Social Reconstruction in Bosnia and Herzegovina and Croatia, in My Neighbor, My eNeMy, supra note 1, at 183. Id. 19295, 200. Biro et al. conducted a survey of more than 1,600 residents of Vukovar, Prijedor, and Mostar divided equally among ethnicity. The survey was wide-ranging, designed to gauge the existence or potential for ethnic reconciliation, but it also sought to measure attitudes toward the ICTY. Id. at 201.
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who not only killed, but also robbed, raped, and forced people out of their homes. This statement also implies that [for victims] retribution is the principal purpose of punishment.58
However, the implications of this statement are unclear. Just as in the South African case, the high level of dissatisfaction with the outcome of postconflict justice efforts in the former-Yugoslavia case seems to indicate that truth-telling efforts have failed to dampen at least some victims desire for retribution. Yet, it is ultimately unclear what this desire for retribution actually means. Does dissatisfaction with the penalties meted out by the ICTY, for example, mean that victims are more likely to engage in or support retributive violence? Does it actually complicate efforts at social or political reconciliation? Ultimately, however, both the Ivkovic and Biro et al. stud ies suggest that truth-telling through the ICTY might not have any particular impact on victims desire for retribution. What about the impact on the psychological well-being of victims? While Stover offers an impressionistic glimpse into the impact of victims mental health in response to participation in the ICTY, at least one recent study offers more concrete data. Metin Basog and his colleagues surveyed nearly lu 1,400 survivors of the Balkan wars who each had at least one war-related traumatic experience (combat, torture, internal displacement, refugee experience, siege, and/or aerial bombardment), and they examined the impact of perceptions of justice and accountability on their mental health.59 This study remains the only one that has explicitly sought to test the claim that accountability through truth-telling is necessary for psychological healing of victims of war and atrocity. Basog et al. found that while survivors lu expressed considerable [d]issatisfaction with various forms of redress and [an] associated sense of injustice, this did not cause psychological distress. There was no statistically significant relationship between perceptions of impunity and post-traumatic stress.60 Victims of wartime atrocity who felt disappointed, betrayed, or cheated by the ICTY were not at an increased risk of developing PTSD or severe depression. Instead other more tangible factorsfear and loss of control associated with [a] perceived threat from those held responsible for traumawere much more closely related.61 The study, therefore, strongly suggests that in the case of the former Yugoslavia, truth-telling has had neither the positive, nor the negative, psychological effects that are claimed.
58. 59. 60. 61.
Ivkovic supra note 4, at 32122. , Basog et al., supra note 3, at 580. lu Id. at 588. Id.
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b. Should purported emotional and psychological effects be expected?: Evidence from clinical and forensic psychology. A survey of the experience of truth-telling in South Africa and former Yugoslavia yields rather meager evidence supporting the claims of truth-tellings proponents and critics. We simply dont have enough good data to confirm either way the psychological effects of truth-telling in those cases. Additionally, there is enough variation among truth-telling mechanisms across time and space that it would be problematic to generalize from those two cases.62 What then can we learn from clinical and forensic psychological research about these claims? Based on what we know about victims experience with ordinary criminal justice, should we expect truth-telling in the aftermath of war and atrocity to dampen feelings of vengeance? Based on what we know of the treatment of severe psychological trauma, should we expect truth-telling to ease victims psychological pain? The evidence from clinical and forensic psychology does not offer conclusive answers to these questions. However, the limited data that is available is generally consistent with the preliminary empirical findings from the South Africa and Yugoslav cases. Evidence from forensic psychology. Just as the empirical data of truthtellings psychological effects in post-conflict societies is thin, surprisingly, so too is the data from forensic psychology. Despite claims of the benefits to victims of pursuing redress through the courts, very few studies have systematically examined the impact of the criminal justice experience on crime victims. There is even less evidence with regard to the experiences of victims of human rights abuses, which some have argued are unique and qualitatively different from ordinary crimes.63 Judith Herman, whose work on the causes and treatment of psychological trauma has inspired much of the claims of truth-tellings benefits64 has recently lamented that [a] systematic study of the mental health impact of crime victims participation (or nonparticipation) in the criminal justice system has yet to be conducted.65 The limited research that does exist yields mixed results. Jamie OConnells impressive study that draws on an exhaustive survey of the forensic psychological literature, as well as interviews with therapists who have counseled survivors of human rights violations, found conflicting and contradictory evidence on the psychological impact of victims, primarily victims of torture, who are involved in criminal and civil cases against al62. 63. 64. 65. However, it is significant that these two quintessential cases of post-conflict truth-telling have generated relatively little solid empirical evidence of their impact on victims. See OConnell, supra note 7, at 30304; Stover, supra note 4, at 109 (comparing massive trauma in war to individual acts of violent crime in domestic settings). Judith leWis herMaN, trauMa aNd recovery (1992). Judith Lewis Herman, The Mental Health of Crime Victims: Impact of Legal Intervention, 16 J. trauMatic stress 159, 162 (2003).
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leged perpetrators.66 The study examined both those victims who testified directly as well as those who were not directly involved. He found that for some there may be therapeutic benefit from participating in trials, such as a sense of acknowledgment and empowerment, but for many it is a negative experience. For victims who do not participate directly in litigation, there is some evidence that trials may be psychologically counterproductive if they result in judgments for the alleged human rights violators or in penalties that a victim considers incommensurate with the atrocities.67 Though OConnell does not directly investigate whether participation in trials lessens the desire for vengeance, at least one relatively large study of crime victims in Germany found no relationship between the severity of punishment and desire for revenge.68 For those who are directly involved as litigants, the evidence indicates that there are more risks than benefits. For many victims, the criminal justice system is profoundly disappointing and can be potentially damaging to victims. High expectations are frequently dashed, and generate feelings of resentment, anger, and betrayal.69 In some cases testifying may retraumatize victims,70 though some studies have disputed that finding.71 Nonetheless, OConnell admits that [t]he sparsity of available evidence precludes both conclusions about which effects of trials are most common and intense . . . .72 What about the impact of restorative justice (RJ) approaches? Many studies in the transitional justice and peace building literature point to restorative justice principles (if not the actual forensic psychological studies themselves) to make the case for truth commissions and victim-centered approaches to retributive justice. Hence, research into RJs impact on victims may shed further light on accountability through truth commissions. There is a small but growing literature on victims satisfaction with RJ approaches such as victim-offender mediation. Several large, randomized, and controlled studies of RJ that were conducted in various jurisdictions and addressed a wide range of crimes, offenders, and victims, indicate that when RJ is carried out in particular ways and under certain conditions, victims tend to be quite satisfied with the outcomes.73
66. 67. 68. 69. 70. 71. 72. 73.
OConnell, supra note 7. Id. at 30001. Ulrich Orth, Does Perpetrator Punishment Satisfy Victims Feelings of Revenge?, 30 aggressive behav. 62, 64 (2004). OConnell, supra note 7, at 33334. Id. Ulrich Orth & Andreas Maercker. Do Trials of Perpetrators Retraumatize Crime Victims? 19 J. iNterPersoNal violeNce 212 (2004). OConnell, supra note 7, at 301. See heather straNg, rePair or reveNge: victiMs aNd restorative Justice (2002); Heather Strang & Lawrence W. Sherman, Repairing the Harm: Victims and Restorative Justice, 2003 utah l. rev. 15; Lawrence W. Sherman & Heather Strang, Restorative Justice: What We Know
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However, there are important differences between truth commissions and restorative justice mechanisms in Western countries.74 Indeed, the conditions under which controlled studies have found restorative justice to be effective (face-to face meetings following a conviction in which the offender offers an apology) are generally not present in the vast majority of the nearly thirty truth commissions that have taken place so far.75 Given the nature of truth commissions, which are generally charged with investigating systemic repression or mass crimes, often involving hundreds or more victims, it is unlikely that they could ever really approximate an effective restorative justice process. Evidence from clinical psychology and psychiatry. Many observers of truth-telling processes, even its proponents, have acknowledged that claims of its therapeutic value are suspect.76 Hayner, for example, writes, Clearly, some skepticism about the inherent healing qualities of truth commissions is deserved because [h]ealing and reconciliation are both long-term processes that go far beyond the capacity of any one short-term commission.77 Hamber concurs, noting that the long-term ability of a once-off statement or public testimony to address the full psychological impact of the past is questionable, and despite these successes, it would be an error to exaggerate the ability of truth commissions or public testimony to address en masse the needs of individuals struggling with a personal and social history of human rights abuses.78 The vast literature on the nature and treatment of post-traumatic stress bears out this skepticism. Treatment of PTSD is highly individualized, as are
and How We Know It (Jerry Lee Ctr. of Criminology, Univ. of Pa., Working Paper No. 1), available at http://www.sas.upenn.edu/jerrylee/research/rj_WorkingPaper.pdf; Heather Strang, Lawrence W. Sherman, Caroline M. Angel, Daniel J. Woods, Sarah Bennett, Dorothy Newbury-Birch & Nova Inkpen, Victim Evaluations of Face-to-Face Restorative Justice Conferences: A Quasi-Experimental Analysis, 62 J. soc. issues 281 (2006). This is consistent with findings on procedural justice, which shows greater victim satisfaction, even if the outcome is not favorable, when victims perceive that the process is respectful and fair, and when victims are included and believe to have a voice in the proceedings. See Herman, The Mental Health of Crime Victims, supra note 65, at 162 (citing e. allaN liNd & toM r. tyler, the social Psychology of Procedural Justice (1988)); E. Erez, Whos Afraid of the Big Bad Victim? Victim Impact Statements as Victim Empowerment and Enhancement of Justice, 1999 criM. l. rev. 545. See also Tom R. Tyler & E. Allan Lind, Procedural Justice, in haNdbook of Justice research iN laW 65 (Joseph Sanders & V. Lee Hamilton eds., 2001). See Laura Stovel, Paper Presented at the 6th International Conference on Restorative Justice, Vancouver: When The Enemy Comes Home: Restoring Justice After Mass Atrocity, (1 June 2003), available at http://www.sfu.ca/cfrj/fulltext/stovel.pdf. Id. E.g., MiNoW, supra note 13; Fletcher & Weinstein, supra note 8, at 59295; Stover, supra note 4, at 117; Mendeloff, supra note 8; Brandon Hamber, Healing, in recoNciliatioN after violeNt coNflict: a haNdbook 77 (David Bloomfield, Teresa Barnes & Luc Huyse eds., 2003). Hayner, Past Truths, Present Dangers, supra note 14, at 353. Hamber, Does the Truth Heal?, supra note 22, at 135.
74. 75. 76.
77. 78.
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responses to trauma itself.79 There is also a wide range of proposed treatments for PTSD.80 Though research tends to favor cognitive-behavioral and exposure therapies, experts do not agree on which therapy is likely to be more effective for particular populations and when therapy should begin.81 While some could argue that there is no consensus among mental health professionals on the best way to treat post-traumatic stress, what all can agree on is that healing is a long-term process that requires working with a trusted, professional therapist in a safe environment.82 Thus, while Western specialists on PTSD argue that talking about the trauma is ultimately therapeutic, this is only true under controlled circumstances. The courtroom or the truth commission hearing is not a substitute for the therapists couch. Indeed, most of the research on brief interventions for the treatment of PTSD, as well as debriefing immediately after trauma, have found that they are, at best, of no effect. At worst they can lead to increased traumatic responses (or even spark PTSD where it might not have otherwise developed), even when people report that they feel better after the fact.83 Based on this experience, testifying at a trial or truth commission is unlikely to have the lasting psychological benefit that proponents have claimed, and it may, as some argue, actually do harm.84
79. 80. 81.
82. 83.
84.
OConnell, supra note 7, at 306 n.42; Creamer & ODonnell, supra note 2; E.B. Foa & E.A. Meadows, Psychosocial Treatments for Posttraumatic Stress Disorder: A Critical Review, 48 aNN. rev. Psychol. 449 (1997). Foa & Meadows, supra note 79. Neil W. Boris, Alan C. Ou & Rohini Singh, Preventing Post-Traumatic Stress Disorder After Mass Exposure to Violence, 3 biosecurity & bioterrorisM: biodefeNse strategy, Prac. & sci. 154, 158 (2005); cf. Jonathan I. Bisson, Anke Ehlers, Rosa Matthews, Stephen Pilling, David Richards & Stuart Turner, Psychological Treatments for Chronic Post-Traumatic Stress Disorder, 190 brit. J. Psychiatry 97 (2007); J. Bisson & M. Andrew, Psychological Treatment of Post-Traumatic Stress Disorder (PTSD), 3 cochraNe database of systeMatic revieWs (2007). This point is discussed in Fletcher & Weinstein, supra note 8, at 593594, esp n. 72. Arieh Y. Shalev, Treating Survivors in the Immediate Aftermath of Traumatic Events, in treatiNg trauMa survivors With Ptsd 157, 17883 (Rachel Yehuda ed., 2002); Foa & Meadows, supra note 79, at 456; S.C. Rose, J. Bisson, R. Churchill & S. Wessely, Psychological Debriefing for Preventing Post Traumatic Stress Disorder (PTSD), 2 cochraNe database of systeMatic revieWs (2002); Marit Sijbrandij, Miranda Olff, Johannes B. Reitsma, Ingrid V. E. Carlier & Berthold P. R. Gersons, Emotional or Educational Debriefing After Psychological Trauma: Randomised Controlled Trial, 189 brit. J. Psychiatry 150 (2006). Some scholars see PTSD as an inherently Western social and cultural construct, and have cautioned against using it as a basis for assessing post-war trauma and treating victims of war and atrocity generally across disparate cultures. See Patrick J. brackeN, trauMa: culture, MeaNiNg aNd PhilosoPhy 6775 (2002). Similarly, some transitional justice scholars have called for the use of culturally-sensitive justice mechanisms that are tailored to specific local contexts. See, e.g., Erin K. Baines, The Haunting of Alice: Local Approaches to Justice and Reconciliation in Northern Uganda, 1 iNtl. J. traNsitioNal Just. 91 (2007). For a contrary view on the benefits of local justice approaches, see Lars Waldorf, Mass Justice for Mass Atrocity: Rethinking Local Justice as Transitional Justice, 79 teMP. l. rev. 1 (2006).
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Applicability to post-conflict truth-telling. How applicable is this insight for truth-telling in post-conflict societies? Because ordinary violent crime may be qualitatively different from war crimes and massive human rights violations, some might argue that experiences of ordinary crime victims within a traditional Western criminal justice system may not be entirely relevant to victims of wartime abuse.85 These arguments draw a compelling distinction between the nature of state-sponsored violence and ordinary criminal violence, and its impact on victims. In addition, PTSD specialists note that trauma suffered in war is highly complex. Victims in war routinely suffer from multiple traumas, including loss of property, deprivation, displacement, imprisonment, physical brutality, and the death or disappearance of loved ones.86 However, all of this suggests that post-conflict truth-telling mechanisms are likely to have even less of a beneficial impact on victims of wartime abuse. In other words, one could argue that the response of ordinary crime victims to traditional accountability, in effect, presents an easier test of the claim of truth-tellings psychological benefit. If results are uncertain in these cases, then they are highly suspect in the case of postwar societies. In addition, we know that the sources and development of severe anxiety, depression, and PTSD in those who have been exposed to trauma remain largely mysterious. Exposure to trauma alone, while it increases risk of PTSD symptoms, does not necessarily cause PTSD. Environmental, biological, genetic, social, and cultural factors all likely play some role in how or whether PTSD develops.87 In many cases, the severity of PTSD and related symptoms may lessen on their own with time (though certain events could
85. 86.
87.
OConnell, supra note 7, at 30304; Stover, supra note 4, at 109. Some studies, however, have suggested that there may not be an effective difference between these various stresses and the onset of severe depression, anxiety, or PTSD. Some epidemiological studies, for example, have found that victims of one-time traumatic experiences, like natural disasters, tend to have higher rates of post-traumatic stress disorders, than those who experienced prolonged trauma in war. Silove, supra note 2 (citing studies by R.F. Mollica, K. Donelan, S. Tor, J. Lavelle, C. Elias, M. Frankel & R.J. Blendon, The Effect of Trauma and Confinement on Functional Health and Mental Health Status of Cambodians Living in Thailand-Cambodia Border Camps, 270 JaMa 581 (1993); N.M. Shrestha, B. Sharma, M. Van Ommeren, S. Regmi, R. Makaju, I. Komproe, G.B. Shrestha & J.T. de Jong, Impact of Torture on Refugees Displaced Within the Developing World: Symptomatology Among Bhutanese Refugees in Nepal, 280 JaMa 443 (1998); A. Blaszczynski, K. Gordon, D. Silove, D. Sloane, K. Hillman, P. Panasetis, Psychiatric Morbidity Following Motor Vehicle Accidents: A Review of Methodological Issues, 39 coMPreheNsive Psychiatry 111 (1998); B.L. Green, Traumatic Stress and Disaster: Mental Health Effects and Factors Influencing Adaptation, in 2 iNterNatioNal revieW of Psychiatry 177 (F.L. Mak & C.C. Nadelson eds. 1996)). Why that might be the case is unclear. Much of the research on the sources and development of PTSD is ongoing and there is no consensus. This is discussed further below. These factorsparticularly culturemay also explain variation in victims sense of justice and desire for revenge.
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trigger a reemergence of symptoms).88 This raises important questions about the relationship between truth-telling and psychological health and makes it extremely challenging to isolate truth-tellings independent psychological impact. We have already seen from one study that dissatisfaction with the ICTY had no significant effect on trauma victims mental health.89 Another study similarly showed no impact on victims mental health from testifying at the TRC.90 We should therefore be skeptical of claims of the potential for healingor psychological harmof post-conflict truth-telling. Until we understand better why people respond to trauma the way they do, we will not fully understand, or be able to make reliable claims about, the effect of post-conflict truth-telling on victims emotional and psychological health. C. Summary This survey of the empirical evidence on the South African TRC, the ICTY, and research in forensic and clinical psychology revealssurprisingly how little we actually know about truth-tellings psychological impact on victims of war and atrocity. One of the core assumptions of transitional justice advocates is that truth-telling has tangible benefits for victims and survivors. According to them, truth-telling satisfies victims need for justice by holding perpetrators accountable in some fashion for their crimes, and eases their mental anguish by revealing the details of how they or their loved ones suffered. As a result, truth-telling provides victims with a degree of closure. This, in turn, is believed to dampen the desire for vengeance, reduce the risk of retributive violence, and ultimately reduce the risk of a relapse into war. However, based on the little we know from the few quality studies on South Africa, the former Yugoslavia, and from forensic and clinical psychology, this assumption remains at least open to question, and at most, highly dubious. Those few quality studies reveal a few important findingsalbeit hardly enough to pass any definitive judgment about the psychological and emotional effects of truth-telling. Victims responses to truth-telling are highly individualized and idiosyncratic. Truth-tellings psychological impact is occasionally positive, but is often negative. Some victims believe justice has been served and have received some satisfaction from their experiences. Many, however, have not. While there is no compelling evidence that truth-telling helps heal clinical psychological trauma, such as PTSD, there is also scant evidence that testimony at trials or truth commissions necessarily
88. 89. 90. Creamer & ODonnell, supra note 2; Silove, supra note 2. Basog et al., supra note 3, at 580, 588. lu Kaminer et al., supra note 32.
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retraumatizes victims, as some anecdotes might indicate. Indeed, the studies examined here indicate that the debate over the most victim friendly form of truth-telling is, in fact, a false one. Both trials and truth commissions, it seems, are equally as likely to dash victims hopes and aggravate their psychological wounds, as they are to provide a sense of justice and salve their psychic pain. In short, there is very little definitive evidence that supports the assumption of truth-tellings psychological benefit. What little we do know casts doubt on that claim. Indeed, based on the little we know, it is quite possible that truth-telling has no significant impact, either positive or negative, on victims sense of justice, their demands for revenge and violent retribution, or the amelioration of their psychological trauma. IV. IMPLICATIoNS foR PoST-CoNfLICT PEACE bUILdING What then do the findings of these studies tell us about the effects of truthtelling on peace? This article has been primarily concerned with truth-tellings direct psychological and emotional consequences. However, these psychological and emotional effects are part of the causal logic of truth-tellings peace-promoting impact in post-conflict societies. There are, of course, numerous mechanisms by which truth-telling, through trials or truth commissions, ostensibly promotes peace in post-war societies. However, assumptions and arguments about truth-tellings psychological and emotional impact on individuals and societies are central to many of these causal mechanisms.91 The above assessment of the evidence leads to several important observations about the link between truth-telling, its psychological and emotional effects, and peacebuilding broadly. A. Resilience of Victims of Wartime Atrocity First, arguments about truth-tellings psychological and emotional benefit or harm assume that victims experiences with post-conflict justice processes are important elements of conflict prevention in highly unstable, war-torn societies. The starting assumption of Ivkovic s study, for example, is that victim satisfaction with the ICTY is crucial for the establishment of longlasting peace and security.92 But is this in fact the case? The assessment of the available evidence carried out above clearly calls into question the claim that victims require justice and truth in order to heal from psychological
91. 92.
Mendeloff, supra note 8. Ivkovic supra note 4, at 291. ,
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trauma or to mitigate desire for vengeance. But the more salient question remains: How important is the psychological well-being of individual victims for larger societal peace? The answer is unclear. While there is limited evidence suggesting that those who suffer from PTSD are more vengeful, less open to nonviolent dispute resolution, and less inclined to reconcile with adversaries,93 this finding rests on questionable assumptions: It assumes that debilitating psychological trauma, or the desire for revenge, are widespread in post-war societies, or it assumes that this smaller sub-set of societyindividual, traumatized victimshas a disproportionate influence on the effectiveness of post-conflict peacebuilding. The latter assumption, however, rests on a fairly narrow, if not entirely accurate, reading of the most recent evidence on the success of international post-conflict peacebuilding efforts.94 The former is a highly controversial claim that rests largely on how one defines psychological trauma. Indeed, arguments about the importance of psychological healing for post-conflict peacebuilding often assume that the vast majority of people who are exposed to war-time violence are psychologically debilitated by it. But we know from historical experience, as well as the literature on PTSD, that this is not the case. Most members of society, even if exposed to wartime trauma, do not suffer debilitating illness.95 When looking back at some of the most destructive wars in history, one is struck by the fact that, as a whole, people recovered from the trauma and effectively rebuilt their societies. Indeed, many studies have documented the psychological resilience of those who have experienced wartime trauma.96
93. Christophe Pierre Bayer, Fionna Klasen & Hubertus Adam, Association of Trauma and PTSD Symptoms with Openness to Reconciliation and Feelings of Revenge Among Former Ugandan and Congolese Child Soldiers, 298 JaMa 555 (2007); B. Lopes Cardozo, R. Kaiser, C.A. Gotway & F. Agani, Mental Health, Social Functioning, and Feelings of Hatred and Revenge of Kosovar Albanians One Year After the War in Kosovo, 16 J. trauMatic stress 351 (2003); PhaM et al., supra note 5; Ulrich Orth, Leo Montada & Andreas Maercker, Feelings of Revenge, Retaliation Motive, and Posttraumatic Stress Reactions in Crime Victims, 21 J. iNterPersoNal violeNce 229 (2006); Patrick Vinck, Phuong N. Pham, Eric Stover & Harvey M. Weinstein, Exposure to War Crimes and Implications for Peace Building in Northern Uganda, 298 JaMa 543 (2007). Though there is considerable debate over the determinants of successful post-civil war peacebuilding, the particular post-war treatment of war-time victims is not a feature of that debate. See, e.g., Michael W. doyle & Nicholas saMbaNis, MakiNg War & buildiNg Peace: uNited NatioNs Peace oPeratioNs (2006); virgiNia Page fortNa, does PeacekeePiNg Work? shaPiNg belligereNts choices after civil War (2008); buildiNg states to build Peace (Charles T. Call with Vanessa Wyeth eds., 2008); eNdiNg civil Wars: the iMPleMeNtatioN of Peace agreeMeNts (Stephen John Stedman, Donald Rothchild & Elizabeth M. Cousens eds., 2002); MoNica duffy toft, Peace through victory? (forthcoming 2009); Charles T. Call & Elizabeth M. Cousens, Ending Wars and Building Peace: International Responses to War-Torn Societies, 9 iNtl stud. PersP. 1 (2008). brackeN, supra note 84, at 6769; Derek Summerfield, The Social Experience of War and Some Issues for the Humanitarian Field, in rethiNkiNg the trauMa of War 9, 29 (Patrick J. Bracken & Celia Petty eds., 1998). Christine E. Agaibi & John P. Wilson, Trauma, PTSD, and Resilience: A Review of the Literature, 6 trauMa, violeNce & abuse 195 (2005).
94.
95. 96.
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Despite great hardships, wartime survivors are normal, functioning, highly capable members of their societies.97 There is also important research that has looked at the effects of wartime violence on children and adolescents and found remarkable levels of resiliency in the face of the horrors many had experienced.98 Precisely why some people develop debilitating mental illness when exposed to trauma while others do not is the subject of debate and controversy. Indeed, as Derek Summerfield has stated, Arguably, the central question is not so much how or why individuals become psychosocial casualties, but how or why the vast majority do not.99 We simply do not know why some populations are more resilient than others. The point here is not to minimize the suffering of individual victims of wartime atrocity, or to argue that postconflict reconstruction efforts should not be sensitive to the psychological needs of victims, but rather to put into perspective the relative importance of such issues for post-war stability. In short, victims psychological suffering is likely more of an individual and public health issue, rather than an issue of conflict prevention and war.100
97.
98.
99. 100.
Derek Summerfield, Addressing Human Responses to War and Atrocity: Major Challenges in Research and Practices and the Limitations of Western Psychiatric Models, in beyoNd trauMa: cultural aNd societal dyNaMics 17 (Rolf J. Kleber, Charles R. Figley & Berthold P.R. Gersons eds., 1995); Grant N. Marshall, Terry L. Schell, Marc N. Elliott, S. Megan Berthold, Chi-Ah Chun, Mental Health of Cambodian Refugees 2 Decades After Resettlement in the United States, 294 JaMa 571 (2005). Derek Summerfield has provocatively argued that, [c]hildren affected by war are often reported as being brutalised: the implication is of damaged psychologies and moral norms and of diminished humanity. The United Nations Childrens Fund has stated that time does not heal trauma for millions of such children, who are often described as a lost generation. Did this turn out to be true for the children caught up in the second world war in Europe? The medical literature is replete with similarly sweeping statements that lack validity and are pathologising and stigmatising. Derek Summerfield, Effects of War: Moral Knowledge, Revenge, Reconciliation, and Medicalised Concepts of Recovery, 325 brit. Med. J. 1105 (2002). See also Steve Powell, Rita Rosner, Willi Butollo, Richard G. Tedeschi & Lawrence G. Calhoun, Posttraumatic Growth After War: A Study With Former Refugees and Displaced People in Sarajevo, 59 J. cliNical Psychol. 71 (2003); lyNNe JoNes, theN they started shootiNg: groWiNg uP iN WartiMe bosNia (2004); alePhoNsioN deNg, beNsoN deNg, beNJaMiN aJak With Judy a. berNsteiN, they Poured fire oN us froM the sky: the true story of three lost boys froM sudaN (2005); Summerfield, Addressing Human Responses to War and Atrocity, supra note 97, at 23; Elvira Durakovic -Belko, Alija Kulenovic & Renko apic Determinants of Posttraumatic Adjustment in Adolescents , From Sarajevo Who Experienced War, 59 J. cliNical Psychol. 27 (2003). Summerfield, Addressing Human Responses to War and Atrocity, supra note 97, at 23. Of course those who ascribe to mass societal and psychological explanations for violent conflict, particularly mass killing and genocide, would clearly reject this argument. See erviN staub, the roots of evil: the origiNs of geNocide aNd other grouP violeNce (1989); erviN staub, the Psychology of good aNd evil: Why childreN, adults, aNd grouPs helP aNd harM others (2003). However, the view that mass killing and genocide are mass phenomena explained by individual psychology, is open to legitimate debate. See beNJaMiN a. valeNtiNo, fiNal solutioNs: Mass killiNg aNd geNocide iN the tWeNtieth ceNtury (2004).
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Further, it is problematic to assume that post-conflict truth-telling has the same psychological and emotional impact on victims as it does on the general, non-victimized population. Though some studies of victims of Apartheid-era abuse, for example, have found high levels of dissatisfaction and unwillingness to forgive perpetrators, James Gibsons examination of broader societal perceptions of the TRC and justice found greater tolerance and greater propensity toward reconciliation among South African society as a whole, and among white South Africans in particular.101 More important, the analysis above suggests that we simply cannot generalize about the psychological and emotional impact of post-conflict justice processes on victims of war and atrocity, both within and across, cases. Thus, it would be surprising to find uniform impact on general, non-victimized, populations. Biro et al., for example, found considerable ethnic and regional variation in the perceptions of the ICTY among the general population surveyed in Bosnia and Croatia.102 b. Individual Healing vs. Societal Peace The above analysis raises another, related, observation. There is clear tension between the requirements of individual victims and the demands of society as a whole.103 The experience of the TRC and ICTY show that what may be desirable for societal peace and stability may not be conducive to victims psychological well-being, and vice-versa. The most obvious example is the issue of vengeance. One of the core psychological goals of truth-telling is to dampen the individual desire for revenge because it could spark retributive violence. A vengeful society is not likely to be a peaceful society. It is plausible to assume that peace building in post-conflict societies will be strengthened if popular revanchism can be contained or eliminated. Indeed, in places like Rwanda and Bosnia, counseling services are provided by humanitarian organizations precisely to contain such emotions in the interest of societal peace.104 However, while this may be beneficial for society as a whole, it may not necessarily be beneficial for individual victims. The desire for revenge is not a pathological response to wartime trauma. Rather it is perfectly normal; indeed, some psychologists have argued that it is quite healthy.105 As a result,
101. 102. 103. 104. 105. gibsoN, supra note 1, at 23, 32835; James L. Gibson, The Contributions of Truth to Reconciliation: Lessons from South Africa, 50 J. coNflict resol. 409, 41011 (2006). Biro et al., supra note 55. For a greater exploration of this issue see Leebaw, supra note 17. Derek Summerfield, A Critique of Seven Assumptions Behind Psychological Trauma Programmes in War-Affected Areas, 48 soc. sci. & Med. 1449 (1999). Orth et al., Feelings of Revenge, Retaliation Motive, supra note 93, at 23940.
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denying that emotion to victims could cause them further psychological distress. As Raquel Aldana has argued:
To be sure, many victims of violent crimes experience deep emotions of anger and hatred and the desire for revenge. It is mistaken, however, to dismiss these emotions as wholly invalid, irrational, or evil. It is not only natural for victims to hate those who wronged them and to seek revenge against those who victimized them, but it can also be good for them to despise passionately what they have experienced.106
Hamber and Wilson concur, arguing that revenge can serve the function of closure for the individual.107 Nonetheless, the societal value of efforts to dampen such emotions likely outweighs any potential psychological harm that such efforts might inflict on individual victims.108 These sorts of uncomfortable trade-offs are also features of war crimes tribunals. As many have pointed out, a courtroom is not a terribly therapeutic environment. In an adversarial system witnesses are sometimes subject to fierce cross-examination and the credibility of their stories is questioned. This is not the kind of safe, trusting environment that is hospitable to victims who must recount their traumatic experiences.109 As Herman has written, if one set out intentionally to design a system for provoking symptoms of posttraumatic stress disorder, it might look very much like a court of law.110 Witness testimony at criminal trials generally, and at the ICTY in particular, has proven to be psychologically harmful for some victims.111 Yet, the rights of the accused to a fair trial are equally, and arguably more, important than the psychological well-being of victims, particularly in the establishment of a robust rule of law. While courts should of course be sensitive to victims mental health, their overriding obligation is to try cases fairly under the law. That mission clearly is at odds with psychological healing. As psychologist de Ridder has observed with regard to the TRC:
While there is no doubt that the TRC has empowered and given a voice to people that bore the brunt of apartheid repression, the process is vulnerable to
106. 107.
108. 109. 110. 111.
Aldana, supra note 7, at 116. Brandon Hamber & Richard A. Wilson, Symbolic Closure Through Memory, Reparation and Revenge in Post-Conflict Societies, 1 J. Hum. Rts. 35, 38 (2002). See also RicHaRd a. Wilson, tHe Politics of tRutH and Reconciliation in soutH afRica: legitimizing tHe Post-aPaRtHeid state 15687 (2001); micHael ignatieff, tHe WaRRioRs HonoR: etHnic WaR and tHe modeRn conscience 188 (1997). It should also be noted that the desire for vengeance alone is not sufficient to explain the outbreak of war or a collapse of peace building efforts. Stover, supra note 4, at 109. Herman, The Mental Health of Crime Victims, supra note 65, at 159. OConnell, supra note 7; Aldana, supra note 7; Stover, supra note 4; Marie-Bndicte Dembour & Emily Haslam, Silencing Hearings? Victim-Witnesses at War Crimes Trials, 15 euR. J. intl l. 151 (2004).
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the accusation that it has put survivors at risk in the interests of national healing and reconciliation. Is the emotional price of national healing and reconciliation too high for the individual? Or do the benefits for the nation outweigh the mental health risks to individuals and families?112
C. Reconciling the Tension between Victims and Society Many proponents of trials would reject the view that there is any such tradeoff and would continue to defend the value of truth-telling for both society and victims. No pain, no gain, goes the argument: truth-telling is inherently painful, for societies as well as victims. Victims may experience pain initially, but in the end the truth will heal (most) wounds.113 This view, however, rests largely on wishful thinking. As discussed above, there is barely any evidence to support it. Others who are skeptical of truth-tellings psychological benefits have addressed de Ridders rhetorical question by proposing various victimfriendly fixes to the truth-telling process. Beyond providing better witness support services and including more honest disclosure of what is involved, some have called for reforms that will make the courtroom more hospitable to victim-witnesses. These reforms include better training of prosecutors and judges, streamlining the process to make trials and truth commissions run more quickly and smoothly, and, of course, more money to make this all happen.114 As these skeptics argue, trials and truth commissions have the potential to provide psychological benefit to victims if they present a safe environment, and are able to offer meaningful justice to victims.115 However this argument, too, suffers from excessive optimism. As studies from the law and forensic psychology have indicated, victim satisfaction with criminal justice tends to be low when the outcome of the process is not commensurate with victims expectations.116 We know from the Yugoslav
112. 113. 114. de Ridder, supra note 20. See the views to this effect of Douglas Johnson, Executive Director of the Center for Victims of Torture, in OConnell, supra note 7, at 318. See, e.g., Stover, supra note 4, at 109; Byrne, supra note 22, at 25153; Aldana, supra note 7, at 11415; Backer, supra note 33, at 240; Brandon Hamber, Nunca Msand the Politics of Person: Can Truth Telling Prevent the Recurrence of Violence?, in telliNg the truths: truth telliNg aNd Peace buildiNg iN Post-coNflict societies 207 (Tristan Anne Borer ed., 2006). Aldana, supra note 7, at 114. Camille B. Wortman, Esther S. Battle & Jeanne Parr Lemkau, Coming to Terms with the Sudden, Traumatic Death of a Spouse or Child, in victiMs of criMe 108, 118 (Robert C. Davis, Arthur J. Lurigio & Wesley G. Skogan eds., 2d ed. 1997); OConnell, supra note 7, at 32728 (citing Bruce Feldthusen, Olena Hankivsky & Lorraine Greaves, Therapeutic Consequences of Civil Actions for Damages and Compensation Claims by Victims of Sexual Abuse, 12 caN. J. WoMeN & l. 66, 7273, 98 (2000)).
115. 116.
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experience, for example, that even though most victims have considered the ICTY to be fair and to have produced fair verdicts, they nonetheless have been generally unhappy with the punishment meted out. However, it is not clear the extent to which the opposite holds true: that victims will perceive justice to have been done even if their expectations are met. This raises an important question: Is victim dissatisfaction with the truth-telling process the result of faulty truth-telling institutions, or is dissatisfaction inherent to the search for justice after mass atrocity? Those who argue that the process needs some victim-friendly tweaking assume the former; yet, the latter may just as easily be true. Why, for example, would one expect to ever be sufficiently satisfied with any form of redress in the face of massive brutality? Further, Richard P. Wiebes examination of the impact of extensive victims rights reforms in the US criminal justice system has found that [a]lthough legislatures have enacted a plethora of statutes attempting to ease the victims experience with the court system, research does not yet support the contention that the quality of this experience significantly aids the victims eventual psychological recovery.117 Finally, proposals to provide full disclosure to victims, while sensible, may ultimately undercut the ability of truth-telling institutions to encourage participation. With full disclosure, far fewer victims are likely to come forward to tell their stories. Thus, it is simply not clear how reforms of the type proposed would address the fundamental tension between victims psychological needs and those of society as a whole.118 The most sensible solution might be simply to look elsewhere for dealing with victims psychological trauma. OConnell has argued persuasively that:
Policymakers, activists, and survivors themselves should hesitate to pursue judicial action against human rights violators as a means for helping victims psychologically, until and unless further research shows that judicial actions have a net therapeutic effect on most survivors. . . . Generally, however, those seeking to help traumatized survivors heal should put less faith in trials. Instead, they should devote greater attention to non-judicial initiatives that may address psychological aftereffects of human rights violations more reliably.119
117.
118. 119.
Richard P. Wiebe, The Mental Health Implications of Crime Victims Rights, in laW iN a theraPeutic key: develoPMeNts iN theraPeutic JurisPrudeNce 213, 226 (David B. Wexler & Bruce J. Winick eds., 1996), quoted in Herman, The Mental Health of Crime Victims, supra note 65, at 16162. One would also have to question the logic of calling for better-trained judges and prosecutors to mitigate psychological and emotional distress to victims, when it is the defense counsels cross-examination of victim-witnesses that is at issue. OConnell, supra note 7, at 340.
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Though societies often choose many reasons to promote truth-telling in the aftermath of violent conflict, based on the limited evidence available, it is not clear at this point that psychological and emotional well-being of victims should necessarily be one of them. Indeed, it is not clear from the available evidence that formal truth-telling processes can deliver for victims all that its proponents promise.

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HUMAN RIGHTS QUARTERLY

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Heightened sense of justice

Healing of psychological trauma

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Mendeloff, supra note 8. Ivkovic supra note 4, at 291. ,

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