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The transnational movement for Truth, Justice and

Reconciliation as an emotional (rule) regime?

Helena Flam

To cite this article: Helena Flam (2013) The transnational movement for Truth, Justice and
Reconciliation as an emotional (rule) regime?, Journal of Political Power, 6:3, 363-383, DOI:

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Published online: 04 Dec 2013.

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Download by: [Universidad del Rosario] Date: 21 March 2017, At: 11:14
Journal of Political Power, 2013
Vol. 6, No. 3, 363383,

The transnational movement for Truth, Justice and Reconciliation

as an emotional (rule) regime?
Helena Flam*

Institute of Sociology, University of Leipzig, Leipzig, Germany

The text at rst focuses on a recent human rights movement for Truth, Justice
and Reconciliation (TJ&R) and the War against Impunity. It briey presents
power structures, values, events and mobilizations that have led to some key
forms of its institutionalization, such as the Truth Commissions (TCs), Interna-
tional Crime Tribunals (ICTs) and the International Criminal Court (ICC) in
The Hague. It then poses the question of the emotional regimes that have
accompanied its emergence and institutionalization. It does so in a threefold
manner: it asks what feeling rules have been proposed by the Western armchair
critics of the West as appropriate for dealing with past/distant human suffering.
It then focuses on the activists the humanitarian and human rights movements
active where the suffering takes place to see what they propose as appropriate
feeling rules. Finally, it reproduces some elements of a broader, transnational
debate concerning TJ&R to tease out the feeling rules advocated for victims
and perpetrators facing TCs, ICTs, and the ICC in The Hague. In conclusion,
the text asks whether we can speak of a Western institutional and emotional
regime growing out of the movement for TJ&R.
Keywords: reconciliation; human rights; power; emotions; human suffering

In this text, I would like to briey sketch out what one can see as the emerging
transnational movement for Truth, Justice and Reconciliation (TJ&R) a part of a
larger movement for human rights, and to then pose the question of what feeling
rules have accompanied its emergence. It harks back to, even posits as exemplary,
the reconciliation processes which have taken place in West Germany after World
War II following the Nuremberg Trials. The transnational movement for TJ&R is
only about 2030 years old. It sets itself highly ambitious moral goals. Although
its promoters are aware of the inherent contradictions between its prime goals, and
not all would subscribe to them simultaneously, the movement taken as a whole
has as its main aims to reveal the truth about the past atrocities, to administer jus-
tice, punishing the perpetrators of these atrocities, and to achieve a new understand-
ing of the past. It also advocates reaching reconciliation between the perpetrators
and the victims in order to build a just and democratic society. Proponents of this
movement stress the role of TJ&R as an alternative to revenge and spirals of vio-
lence, on the one hand, and peaceful yet uncertain, volcanic coexistence, built upon
suppressed memory and silenced debate about the past, on the other. They see
TJ&R as a means of preventing recurrences of past injuries to individuals and col-
lectives; as a road to the reassertion of victims dignity and rights; and as a passage


2013 Taylor & Francis

364 H. Flam

to a secure transition from the time of civil war or dictatorship/totalitarianism to

The movement for TJ&R overlaps with a more recent mobilization for a War
against Impunity declared against the perpetrator-elites and perpetrator-states
responsible for mass atrocities. Its goal is to protect citizens against states their
own or foreign that negatively affect their well-being (Minow 1998, p. 147,
Boltanski 1999, pp. 178183, 189, Rotberg and Thompson 2000, Leebaw 2007,
Axworthy 2008, Hayner 2010[2001], Buckley-Zistel and Kater 2011, Rodrigues
2012). The War against Impunity extends the promise of tilting the balance of
power to favor citizens in relationship to states. It is said to be waged by a coali-
tion of international organizations (IOs), (transnational) non-government organiza-
tions ((T)NGOs) and medium-size states daring to question the oligopolistic power
of the USA, Russia and China and their predominance in the UN Security Council
The institutions set up by the TJ&R movement whether TCs, ICTs for specic
countries or ICC in The Hague have been hailed as reassertions of human rights
and democracy after long periods of or in the midst of (trans)national brutality
(Rotberg 2000, pp. 45, Hayner 2010[2001]). To the observers dispirited by dec-
ades of mass disappearances and killings, genocide and mass rapes, the movement
for TJ&R seems to extend the promise that something can and is being done to
counter mass atrocities. Commissions, ICTs and the ICC have heard witness testi-
monies rather than just working with documents. They have received much praise
for giving voice to the victims, allowing them to regain their sense of dignity and
self-worth, while acknowledging their pain.
But as critical voices in a transnational debate about the aspirations and the
institutional reality of the movement for TJ&R point out, the hopes raised by the
movement for TJ&R often turn into bitter frustration and disappointment.1 Here, I
will adopt a special perspective, that of the sociology of emotions, to name some
of the important reasons why the TJ&R institutions disappoint their critics. From
the point of view of the sociology of emotions, it is of interest what norms for
emotions emerge in an unchartered territory of human life. Hochschild (1979,
2012), one of the pioneers of the sociology of emotions, proposed that society in
general, and work organizations and gender relations in particular, are regulated by
norms pertaining to emotions. She called these feeling rules. They specify which
emotions are to be felt and expressed in which situations, with what intensity and
which duration.
Four historians, similarly, have worked on (i) emotionologies or norms pertain-
ing to emotions and their expression in specic societies or their subgroups (Stearns
and Stearns 1985, Plamper 2010); (ii) emotional communities setting value on dif-
ferent emotions, their expressions and their instrumental uses, (Rosenwein 2010);
and (iii) emotional regimes that are imposed by political regimes and prescribe
specic emotional styles, consisting of norms, ideals, rituals and vocabularies.
Overt adherence might lead to inner emotional suffering, yet non-compliance is
costly since it implies the risk of punishment (Reddy 2001, Reddy 2008[1997]).
The insight that prevailing emotional regimes with their distinct feeling rules
are expressions of power but also in reverse indicate who holds power in a given
community was formulated already by Kemper (1978). He pointed out, leaning on
Elias, that power holders dene cultural rules, including these pertaining to
emotional expression. These rules sustain and protect their power, attaching risk of
Journal of Political Power 365

punishment to deance. Hochschild in her turn stressed that those who possess
materialpositional power, be it enterprise managers in contrast to workers or men
in contrast to women, assert ideologies institutionalizing their power through den-
ing the (exploitative) division of labor as well as the asymmetric role expectations
and rules for emotional exchanges.
These concepts were meant for single societies in which a group of power hold-
ers monopolizes control over physical force and a variety of material and ideal
resources, and thus can deploy different means, ranging from persuasion to force,
to reinforce their power. In a joint WeberianBourdieuian sense, a political power
regime is successful when the asymmetries in economic, expert, legalbureaucratic
and military power seem widely accepted, being reinforced by a parallel skewed
distribution and uneven capacity to generate cultural, symbolic, moral and social
capital. Discourses, networks and institutions attaching cultural, symbolic and moral
capital to specic races, nations, gender and age groups help to naturalize and
thus solidify these power asymmetries even further.
History teaches us that deance emerges in a political regime when its self-
representations do not match its practices, when it modies either intensifying or
lightening up physical or cognitiveemotional suffering of those subject to it.
They respond with a search for sites of cognitiveemotional refuge, possibly
developing their own anger-fed hidden transcripts or even their own full-blown
culture and forms of consciousness, paving the way to open rebellion (Thompson
1963, Scott 1990, Reddy 2001, Reddy 2008[1997]). Alternatively, when the aspir-
ing power holders manage to dene alternative material or ideal resources as supe-
rior to those of the power holders (for more see Burns and Hall 2012), the deant
are willing to take the risk of openly rallying to their support.
Here, the focus is not on a single national case, but instead on the transnational
multi-actor system. Also in this system power to maintain or to modify the status
quo is based on a variety of resources ranging from economic, technical, legal
bureaucratic and military through to social and moral. The main reasons for de-
ance remain the same as in the national settings.
Below, I will recount how a coalition of aspiring power holders, comprised of
the internationally respected (T)NGOs, a few IOs and several medium-sized states
(dubbed like-minded states, LMS), succeeded in institutionalizing the foundations
of an unprecedented transnational legalmoral regime for the persecution of trans-
gressors against violations of laws and customs of war, genocide and crimes against
humanity. Their successful coalition-building amounted to a sudden acquisition of
social capital. This capital helped concentrate and employ as a powerful weapon
cultural, moral and symbolic capital which had been dispersed before. Heteroge-
neous as they were, the coalition partners acted on a variety of motives, ranging
from idealism to the quest for more power in the international affairs. The (T)
NGOs delivered moral outrage, expertise and the principles around which the coali-
tion could rally. The representatives of the IOs and LMS supplied the authority of
ofce, willingness to lobby for these principles, and their (legal-bureaucratic) enti-
tlement to partake in international negotiations and make international agreements.
The coalitions `crowning` accomplishment the setting up of the ICC in The
Hague in 2002 stood for the victory of a new legalmoral regime called into life
to wage a war against the elite perpetrators and for TJ&R. It was also a battle (but
not the war) won against the dominance of the great powers within the UNSC and
the realm of international affairs.
366 H. Flam

After accounting for the emergence of this new legalmoral regime and its insti-
tutionalization, I will investigate the related emotional regime by asking what feel-
ing rules (i) the Western critics of the West propose the West should adopt for
dealing with distant/past human suffering; (ii) the Western activists adopt and,
nally, (iii) the professionals, IOs, (T)NGOs and advocacy groups shaping a
transnational debate about this regime suggest as appropriate for perpetrators and
victims heard in the TCs, ICTs and the ICC.

On the movement for TJ&R and its institutionalizations

In the past 3040 years, demands for TJ&R have spread in countries that had been
subject to atrocities as a result of the civil wars, genocide or an authoritarian/totali-
tarian rule entailing serious human rights violations. Often, these demands have
been blocked or minimized by the perpetrators and their economic and political
allies, whether at home or abroad. Nevertheless between 25 and 30 TCs, several
ICTs and the ICC were established.
In larger numbers truth commissions appeared in Latin and Central America
and in countries emerging from civil wars and dictatorships as a result of which
tens of thousands of citizens had been imprisoned, tortured, disappeared or killed.
Most commissions were set up by democratically elected governments, some by
the UN or with its backing (Hayner 2010[2001]). The Argentinian democratic gov-
ernment created a National Commission on the Disappeared (CONADEP) in 1983.
In Chile, President Aylwin established a National Commission for Truth and Rec-
onciliation in 1990. The UN Commission on the Truth on El Salvador followed in
1991. The Guatemalan three-man commission on Historical Clarication (1997
1999) was merely UN-backed. It had a very narrow mandate, yet became a cause
of transnational celebration because of its courage in naming the military perpetra-
tors and detailing their crimes (Rotberg 2000, p. 4).
After the breakdown of the Soviet bloc in 1990, commissions emerged also in
Central Europe, and in the course of democratization processes on other continents.
The Truth and Reconciliation Commission for South Africa (1995) and the
Rwandan National Unity and Reconciliation Commission (1999) became iconic for
they seemed to succeed in squaring the circle of simultaneously pursuing TJ&R.
The most recent Truth Commission was set up in Brazil in 2012.
The ICTs and the ICC have a long prehistory usually traced back to the declara-
tions of human rights and the concept of humanity that asserted themselves in the
wake of the Holocaust and World War II (Mazlish 2009, pp. 18, 26, 3132, 36).
These dene all human beings, independently of their class, race, gender, sexual
preference, etc., as equal and as such entitled to the protection of their rights by the
international community of states against genocide, war crimes and crimes against
In their legal lineage, the ICT and the ICC have: the Charter for the Interna-
tional Military Tribunal, the International Military Tribunal at Nuremburg (1945
1946), the Tokyo War Crimes Tribunal (19461948), the UN Universal Declaration
of Human Rights (1948), the UN General Assembly genocide ban and the UN
Genocide Convention of 1948, the mock tribunal established by Bertrand Russell
and Jean-Paul Sartre putting the US on trial for its conduct in Vietnam in 1967, the
Helsinki Accords of 1975 and Charter 77, the UN decisions on the creation of
these tribunals, the Rome Statute of 1998 setting up the ICC, etc. (Minow 1998,
Journal of Political Power 367

pp. 2729, 3335, Mazlish 2009, pp. 1819, 26, 43, 60). These initiatives have
asserted the importance of human rights in face of divisive state politics, uneven
division of power within the international community, brutal political regimes and
long-standing categorizing practices splitting humans according to race, nation,
ethnicity, sex or age.
This noble heritage should not obscure the power asymmetries within the inter-
national community of states and the Realpolitik behind the creation of the TCs,
ICTs and the ICC to which I will now turn. The rst ICTs were set up in the
1990s not so much because of concern for truth and justice, but instead because of
indifference and/or, if one wishes a more generous label, hesitation about what to
do about the mass killings, which the Western and regional states did not care to
stop. The fact is that the West had failed to prevent or intervene quickly enough to
prevent mass killings in, for example, Cambodia, the former Yugoslavia and
The creation of the International Criminal Court for former Yugoslavia (ICTY)
in 1993 was meant as a humanitariandiplomatic gesture. It was to show that the
international community of states was taking action at a time when most of its
members neither acknowledged that ethnic cleansing/genocide was taking place nor
intervened militarily to stop the bloodshed (Wald 2002, p. 218, Smith 2010,
pp. 106107, 109141). Joint international and African pressure, driven by charges
of racism and ethnocentrism, was required in order to move the UN to set up
the International Criminal Tribunal for Rwanda (ICTR) in 1994 (Minow 1998,
pp. 3839). Setting it up allowed the international community of states to continue
its rather vague appeals for the guilty parties to end the genocide(s) without taking
sides, identifying the perpetrators or acting upon the legal obligation to stop the
killings (Smith 2010, pp. 152158, 168178). As Smith (2010, pp. 178179)

In the most clear-cut case of genocide in the Post-Cold War era [- Rwanda], European
governments could (grudgingly) acknowledge that a genocide was ongoing but none-
theless limit their response to declaratory measures, humanitarian aid and support for
a process of justice This may illustrate compliance with the letter of the Genocide
Convention but certainly not the spirit In both Bosnia and Rwanda, European gov-
ernments had shown little or no willingness to intervene with coercive measures to
stop the violence.

Under the pressure of outraged public opinion and some left-liberal politicians,
several European governments and the UN launched investigations into their
pre-1995 failure to deploy military forces to stop massive killings. Self-critical
debates prompted these governments and the UN to abandon the comfortable
principle of non-intervention in the other states affairs to protect human rights
(Smith 2010, pp. 127129, 174175, 179180).
Simultaneously, after 1996 many concerned TNGOs, such as the International
Committee of the Red Cross, Amnesty International, Human Rights Watch or Med-
icins du Monde, and some key politicians, such as, Lloyd Axworthy in Canada,
Joshka Fischer in Germany, Robin Cook in the UK, and Ko Annan at the UN, to
name just a few (Leebaw 2007, pp. 228229, Axworthy 2008, Smith 2010, p. 180)
joined a transnational campaign which became known as the War against Impu-
nity. Some prime movers of this campaign had earlier participated and fused
together in a successful, transnational campaign to ban all landmines. It had been
368 H. Flam

initiated by the Vietnam Veteran Association and the US anti-landmine organiza-

tions, and ended with the Ottawa Treaty of 1996 (Axworthy 2008).
This campaign was an unprecedented attempt by a coalition of highly respected
TNGOs and left-liberal dove politicians, coming from LMS, such as Canada,
Norway, Germany or the UK, to circumvent big powers, such as the US, Russia
and China. These have been blocking initiatives for peace and disarmament within,
but also beyond, the UNSC (Glasius 2006, Axworthy 2008, pp. 234237, Schiff
2008, Struett 2008).3
Very quickly, the War against Impunity coalesced around the responsibility to
protect principle (R2P) the basic idea being that the international community
should grant not states, but their inhabitants the right to international protection,
even against states foreign or their own that endanger their security and well-
being (Smith 2010, pp. 6364, Rodrigues 2012, p. 3).4 These principles and the
coalition around it led, inter alia, to the establishment of the ICC in The Hague in
2002. Under the Rome Statute, the ICC can only investigate and prosecute the core
international crimes when states are unable or unwilling to do so themselves, and it
can only persecute crimes committed after 1 July of 2002. Within these legal con-
straints, the ICC5 can call members of the hitherto legally protected political and
military elites to account for their responsibility for core international crimes
genocide, crimes against humanity and war crimes (Smith 2010, pp. 1729).
Having presented the movement for TJ&R and its early institutionalized forms,
I will now turn to the emotional regime(s) that have accompanied it: the feeling
rules which have been proposed by (i) the armchair Western critics of the West
for dealing with the past/distant human suffering and by (ii) the humanitarian and
human rights TNGOs which have attempted to alleviate massive human suffering
outside the West. Finally, I will reproduce some elements of a broader, transnational
debate concerning TJ&R to tease out the feeling rules advocated for victims and
perpetrators appearing before TCs, ICTs and the ICC. In the end, I will ask whether
we can speak of a single Western emotional regime pertaining to these institutional-
izations of the movement for TJ&R.

The Western critics of the West and the feeling rules they advocate
The Western critics of the West (e.g. Minow 1998, Boltanski 1999, Brink 2000,
Cohen 2001, Sontag 2003, Alexander 2004[2002]) embrace universal humanistic
realism. They assert that we are all human and thus equal, with an equal right to
good and dignied lives. From this follows that past/distant suffering anywhere in
the world deserves our concern, attention and sympathy. These critics are realistic
insofar as they do not over-idealize humanity. They do not deny its capacity for
evil. What upsets them is how the West portrays, reects and deals with the truth
of human suffering caused by this evil. They all agree, some are even dismayed,
that the West and this includes, depending on the thinker, the politicians, media,
scientists and the public naturalize, racialize, distort or deny the truth of this
suffering. Minow, Sontag and Boltanski, to which I turn now, are particularly
concerned about how the West should feel.
Minow and Sontag most explicitly object to those who see human suffering as
a manifestation of evil and/or human nature too irrevocable, too epic to
be changed (Minow 1998, pp. 45, 144146, Sontag 2003, pp. 79, 83,
114118). They oppose resignation and a feeling of helplessness that accompany
Journal of Political Power 369

the view that evil is omnipotent and asserts itself over and over again, rendering
human life worthless and meaningless. They see it as a moral obligation to take on
the truth of past/distant human suffering, to show empathy and to demonstrate that
human life cannot be destroyed at a whim and fall quickly into oblivion. [I]n the
fearful acknowledgement that we are not done with mass violence, nor expert in
recovering from it, Minow (1998, p. 6) advocates engaging in the excavation and
remembering of the historical truth to avoid hateful, violent spirals of vengeance.
Despite some of the shortcomings of the movement for TJ&R, she wholeheartedly
embraces, promotes and educates about it. Sontag calls for becoming aware of and
not giving in to the evil aspects of human nature. She calls for compassion and
reection, yet warns that one should not give in to remembering and commemorat-
ing at the cost of critical analysis. Early on, she challenges the memory industry
when she cautions: Perhaps too much value is assigned to memory, not enough to
thinking (Sontag 2003, pp. 115, 117). However, her own thinking stays abstract,
reluctant to engage with the particulars of a case.
To Sontag and Boltanski as the Western critics of the West, there is a single,
objective truth about the human suffering that needs to be acknowledged. They
share in common a powerful irritation about the distortions, denials and dismissals
of the truth. Both point an accusing nger at the mass media and politicians, some-
times also at the scientists. In particular, they charge that the media lie, spin, offer
spectacles or numb the public (Sontag 2003, pp. 4142, 44, 5358, 6162, 65,
100104, see the overview in Boltanski 1999, pp. 173185, Hijer 2004, pp. 517,
521, Jacobs 2004). Sontag decries that media reporters, document-producers, pho-
tographers and artists create (too many) propagandistic, beatied or uglied and/or
de-personalized and humiliating images of the suffering and its victims. Rather than
bringing distant suffering home to the public, they serve the perpetrator, seek
prot or pursue professional ideals. Instead, they should be serving global solidarity
and humanity by their rst-hand, authentic testimonies. They prey on the fact that
as human beings we lust for and enjoy the sight of others suffering, and crave for
it as for eroticism and sex (Sontag 2003, pp. 41, 77, 83, 9599, 112).
Boltanski (1999) and Sontag on a few scattered pages (2003, pp. 717,
105115) underscore that distant/past human suffering is not seen or not con-
demned as evil because of various ideologies that account for blind spots and
reversed categories: Communists did not see any human suffering in the Soviet
bloc, and Whites in the USA or South Africa did not see the suffering of the non-
Whites some do not see it even today. Similarly, nationalists do not see humans
suffering but instead an evil enemy that deserves punishment, and supremacists do
not see horrifying mass rapes but instead the implementation of an ethnic cleansing
policy. Boltanskis and Sontags explanations of blindness to suffering contrast
starkly with those developed by neuroscientists, psychologists, neuro-psychologists
and psychoanalysts who this is my argument help to legitimate the state of dis-
tortions and denial when they propose at least three dozens of different denial
models explaining why brains are so wired or individual minds so built as to make
them incapable of seeing and processing the truth of human suffering (for an over-
view, see Cohen 2001, chapter 1, who takes them at their face value).
Sontag has a good ear for a great number of everyday rationalizations, including
sexist and racist ones, buttressing indifference and inaction among Westerners:
(i) wars, violence and human suffering are a fact of life; (ii) power asymmetries are
eternal; (iii) the powerful always win and the victims always lose; (iv) the victims
370 H. Flam

probably have provoked or deserved their fate anyhow; (v) the third World is dif-
ferent, it is always suffering and dying it is senseless and futile to even lift a
hand (van Dijk 1992, Sontag 2003, pp. 7073, Hijer 2004).
To sum up: at least from the point of the Western critics of the West, there is a
clear problem. There is the truth of past/distant human suffering, but the West
instead of showing compassion naturalizes, rationalizes, racializes, sexualizes, and
in other ways distorts, denies or makes a lustful spectacle of this truth. What then
should the West do?

On mindful compassion and cooled indignation

Adopting one of very many possible terms,6 let me say that the Western critics of
the West call for compassion for the distant/past suffering, that is, a painful emo-
tion occasioned by the awareness of another persons undeserved misfortune
(Nussbaum cited Hijer 2004, p. 514). This and similar denitions imply feeling
with or feeling like the suffering person, and thus arguably a generous, spontaneous
bonding with the suffering other.
At the same time, such denitions echo other discourses that counter impulsive,
generous compassion. In Nussbaums denition, we nd the words undeserved
misfortune. They imply that compassion is to be granted only under a condition
that the person did not deserve his/her own suffering. This condition brings the uni-
versal humanist discourse dangerously close to the discourse naturalizing evil
which asserts that victims cause or deserve their own suffering. The old discourse
of charity also echoes in the word misfortune. It distinguishes between the deserv-
ing and the undeserving poor, who become such by the naturalized, anonymous,
unfortunate, deplorable forces of LA FORTUNA/of misfortune rather than as a
result of social, economic and political forces against which one could struggle.
Making a distinction between the deserved and undeserved suffering, and assert-
ing that only the undeserved suffering is the legitimate condition for compassion,
suggests that the compassionate person knows (for criticism of Nussbaum, see
Acorn 2004) how to be discerning in its compassion, that is, not wasting it on
those who do not deserve it. Implied here is a rational in a sense of economizing,
waste-intolerant management of emotional resources.
Also Sontag (2003, pp. 8384, 113114) speaks of compassion for undeserved
suffering. She urges that compassion should not be spontaneous but thoughtful
and activated only upon due deliberation. Concerned about the authenticity or the
truth of the media-mediated distant human suffering, she argues that only true and
undeserved, that is, proven, unstaged and non-propagandistic, suffering deserves
our attention and compassion. She encourages feeling concern, sorrow and compas-
sion, but warns that as the spectators of distant human suffering, we should not
weep or give in to mindless compassion. Instead, we should (i) contextualize and
explain specic instances of human suffering to counter the sense of its inevitabil-
ity; (ii) give voice, face and human dignity to the victims, and, surprisingly this last
point is made only once; (iii) identify the perpetrators (Sontag 2003, p. 115).
Boltanski (1999, pp. 5, 5767, 169) initially charges that asking whether human
suffering is deserved is an amoral question which should not even be posed. Later,
however, when he discusses the potential inuence of indignant voices in the public
arena, he contrasts hot accusatory with calm, investigative type of indignation the
move from emotional to factual. He argues that hot accusatory indignation
Journal of Political Power 371

spontaneously felt against the perpetrators of human suffering has to be cooled to

allow for calm, deliberate, meticulous, systematic, comparative investigation
including the search for documents and artifacts. The cooled indignation is neces-
sary to present a rational and therefore compelling case against the perpetrator in
the public arena.
These Western critics of the West grant that human beings are capable of evil.
They associate this evil with the perpetrators, but as I have just shown they are
not immune to the lurking suspicion that people ready to offer compassion might
be duped either (i) by those who order or produce the images and the news about
the human suffering or (ii) by the undeserving sufferers (leaving unclear who
these might be). Nor can it be excluded that the perpetrators will pretend to be the
victims. The compassion/indignation that they advocate is guarded more guarded
than their criticism of the West would have led one to expect.
Equally intriguing is the fact that these Western critics propose very narrow def-
initions of action that needs to be taken by the Western spectator, citizen, scientist
or consumer of mass culture. Sontag (2003, pp. 8384, 114118) calls for mindful
compassion based on facts, while Boltanski for cooled indignation necessary for
rational fact-gathering and argumentation. Instead of a lustful, sentimental, easily
compassionate or indifferent spectator, Sontag and Boltanski propose a mindful-
compassionate and a cool-indignant spectator. Sontag does not address any forms
of mobilization, while Boltanski devotes a few closing pages of his book to mobi-
lized voters and demonstrators, while stressing the obstacles to humanitarian mobi-
lization (Boltanski 1999, pp. 185192). What can we then learn from, what feeling
rules are proposed by, those who not only feel mindful compassion or cool indig-
nation, but actually actively respond to distant human suffering?

Humanitarian and human ights movements on human suffering

A similar tension between spontaneous and urgent compassion, on the one hand,
and deliberate, slow compassion, coupled with indignation, on the other, can be
found in the humanitarian and human rights discourses. The humanitarian move-
ment, exemplied by the Red Cross, took pride in its neutral stand, and was for
immediate, urgent compassion for human suffering (Boltanski 1999, pp. 178,
181188, Leebaw 2007). It made no distinction between victims and perpetrators,
negotiating, even compromising, with political actors to secure neutral space in
which aid could be administered: [t]he humanitarian movement dened impartiality
in pragmatic terms, as a space apart from political conict, designated to provide
aid to the suffering without provoking the hostility of combatants (Leebaw 2007,
p. 224). It saw politics as dirty and kept its distance from it, but saw itself forced
to deal with it to help the suffering. Initially devoted to alleviating the pain of the
suffering soldiers and other war victims, it now also tries to help victims of natu-
ral catastrophes, causing migration, hunger, emaciation and mass deaths.
The human rights movements, exemplied by the Amnesty International or
Human Rights Watch, dened impartiality as the basis for moral judgments
intended to transform internal political practices (Leebaw 2007, p. 224). It focused
on curtailing and condemning the political powers responsible for the existence and
brutality of the authoritarian and totalitarian regimes. To gain legitimacy, human
rights organizations, which started small and insignicant in the 1970s1980s, had
practised the art of self-restrained or postponed indignation directed at the
372 H. Flam

perpetrators: Whereas humanitarian efforts were marked by the urgency of rescue,

human rights organizations developed strategies that require lengthy deliberations
to determine responsibility for past wrongs, with a view to advancing progressive
change over time (Leebaw 2007, p. 224). Only after a time-consuming investiga-
tion of facts had been completed and the report offered to the authorities and the
public, was the expression of indignation permitted. The human ights movement
was politicized from the very beginning, keen on making a well-grounded and
well-documented distinction between the victim and the perpetrator. Following the
human rights law which is designed to protect the individual from the abuse by the
state (Leebaw 2007, p. 225), it saw politics and the powerful as potential suspects,
to be investigated, accused and condemned; but, it also displayed discipline and
patience before it ofcially formulated its charges.
Since the 1990s, a new consensus emerged. To further legitimate itself and to
expand the scope of its concerns, the human rights movement started paying more
attention to abuses committed during armed conicts, thus becoming cognizant of
humanitarian law (Leebaw 2007, p. 229). The humanitarian movement has become
politicized. Having lost (the Red Cross) or never having had much patience
(Medicins sans Frontieres, Medicins du Monde) with the massive destruction of
human lives and bodies affected by the perpetrators, it forsook several of its princi-
ples the urgency of need, neutrality and respect for state authorities: urgency of
need is no longer the sole consideration in setting the agenda for aid distribution,
partisanship excludes perpetrators from access to aid, and humanitarian corridors
are set up also without the consent of authorities (Boltanski 1999, pp. 178, 181
188, Leebaw 2007, p. 228). It now asks who are the guilty parties and who are the
victims before it seeks to alleviate human pain. It also does not hesitate to show
indignation against the perpetrators (Leebaw 2007, p. 229).
In effect, both the humanitarian movement and the human rights movement
show mindful compassion and indignation. Both also take time to ascertain the
facts of a case, before they decide what to do. They also both acknowledge differ-
ent kinds of perpetrators, not just the state-sponsored ones (Leebaw 2007, p. 231).
Impartiality as a principle has asserted itself in a new form: it calls for investigating
not just state-sponsored but also opposition-sponsored excesses and crimes. This
implies that compassion is not as easily extended or achieved as in the past, and
that indignation can legitimately be directed at very diverse actors.
To sum up, it seems that since the 1990s, the Western critics of the
West whether of an armchair or activist type have produced a moral
emotional discursive eld and a key moral feeling rule for dealing with the past/
distant suffering. This rule says: Only when the crime is proven and the suffering
authenticated, that is, when the suffering is true and its victim innocent (and there-
fore deserving), one is obligated to feel compassion and this is a more recent
addition, as I was at pains to show above to show indignation against the
It is interesting to see how Sontags call for mindful, deliberate compassion
for human suffering translates into a call for meticulous, serious fact-nding as a
necessary prerequisite of compassion and indignation in the eld of humanitarian
and human rights activism. On the one hand, the intention is to prevent the old
leftist and Christian categories of solidarity with the third World from squandering
valuable aid on dictators or warlords. Finer lenses are put on to help keep abreast
of the newest global and local developments to better distinguish real victims from
Journal of Political Power 373

the perpetrators. On the other hand, the search for facts goes along with the con-
viction that Western scienticdiagnostic and legalmoral categories are best suited
for the act of identifying true victims. The alternatives become excluded. The very
ambition of separating victims from perpetrators in extreme situations, moreover,
implies an unrealistic, naive view that in such situations high moral principles can
be and should be upheld at any cost. The stakes seem to be set so high as to put
shame not just on the mass murderers but also on those who killed in self-defense,
stole to feed themselves or their children or submitted to rape in the hope of saving
their lives. Even if the noble intention is not to squander aid on the evil dictators
or warlords who make prot on it, the idea of checking the morals of charity-
receivers smacks of Western donor-paternalism donors demand specic moral
self-regulation from the objects of charity in exchange for their `gifts`. Finally, the
new emotional regime is meant to hasten aid-delivery to people in need. Insisting
on fact-nding, however, opens the way for the rule of experts and decision-makers
whose investigations delay the moment of rescue until their verdict is announced.
This admittedly quick march across two armchair and activist moralemo-
tional discursive elds suggests that even the Western critics of the complacent
West are not ready to offer spontaneous, unpremeditated compassion or show much
indignation without the certainty that they know the truth. The goal is to be in a
position to distinguish the victims from the perpetrators as well as an innocent,
compassion-deserving victim from an undeserving one.
Next, I turn to the transnational discourse on the TCs, ICTs and the ICC. The
purpose is to tease out what this discourse has to say about how the victims and
perpetrators are to behave, in particular, which feeling rules they are to follow.

The discourse on emotions required for TCs, ICTs and the ICC
A paradoxical situation has been created by the movement for TJ&R by its dis-
courses but also by the legalinstitutional constraints within which it unfolds itself.
On the one hand, legal mandates for the ICTY and ICTR, legal discourses and
legal rules for the ICC, the UN Resolution Nr. 1820 of 2008 (Glasius 2006,
pp. 8593, Gericke and Mlhuser 2011, pp. 91103), and a total of 30 ICTs and
TCs indicate a more formal willingness to show compassion for victims in general.
Moreover, formal legal indignation has become more encompassing. The categories
of crimes and the categories of victims have been expanded. This means that vic-
tims of genocide, sexual assault or mass rape are now formally recognized as such.
The R2P echoes in the TCs, ICTs and the ICC in a sense that regular citizens and
their suffering can be voiced and should receive compassionate hearing.
At least formally, victimized citizens have become more important than in the
past relative to the political and military elites and the states responsible for
atrocities. But at the same time, as I will show, the proponents of TJ&R as well as
the TJ&R institutions demand more in terms of courage, endurance and emotions
management from the victims than from the perpetrators.
The obligations and feeling rules formulated for the perpetrators make a short
list. They are to tell the truth, and to admit guilt rather than forget (Minow 1998,
pp. 1424, Henry 2004, 2009, Gericke and Mlhuser 2011, Schfer 2011, p. 160).
In an effort to convince them to reveal the truth about their deeds, it is argued that
even if it is painful for them to remember or they fear the consequences of admit-
ting their guilt, they should testify for the sake of TJ&R, and also because telling
374 H. Flam

their story will have a healing, therapeutic effect. Two emotions are attributed to
them: guilt and fear of admitting guilt. They are admonished not to take forgive-
ness for granted.7
The participants in the transnational discourse on the victims assume that they
know them well. The victims are seen as living in anguish, pain, despair, humilia-
tion and powerlessness as well as in anger, rage and outrage. They are embittered,
resentful, hateful and trapped in unrelenting hatred. In Rwanda, one could actually
see how violent and bloodthirsty they were, sense their frenzy for revenge (Minow
1998, pp. 1, 1424, 120142). They are cast as potential perpetrators which the
post-atrocity society needs to restrain.
Sometimes in one and the same breath, they are portrayed as heroic, anguished
yet hopeful. The victims are said to wish, above all, for a life without fear and
regained sense of control (Minow 1998, pp. 924, 132, 137, Dembour and Haslam
2004, Henry 2004, 2009, Gericke and Mhlhuser 2011, Schfer 2011, 157). They
are said to wish to tell their story, to hope for the validation of their own experi-
ence through being heard, to restore their own sense of dignity and to avoid, if they
indeed are, being painfully imprisoned in the past. Less frequently, they are por-
trayed as inspired by and hopeful about the promises of truth and justice, wishing
for the constitution, the vote, education and jobs. Seeing the slow working of the
law, they are also said to lose their condence in the rule of law and TJ institu-
tions. They are said to turn cynical or disillusioned and frustrated by the fact that,
for example, the tribunals resources are very limited, and there are more lawyers
for the persecutors than for the victims.
When they ask for or accept even mostly pitiful material reparations, they are
accused of venality by their foes and seen in need of defense by their friends
(Minow 1998, pp. 91117, Torpey 2006, Schfer 2011, pp. 162163). In their
defense, statistics are cited showing their extreme poverty, and it is said that they
usually want the money for the education of their grandchildren. Even in this
respect, they are on trial.
The list of obligations and feeling rules for the victims is much longer than for
the perpetrators. Not the heroic, but the victimized yet ready to turn into a perpe-
trator image of the victims prevails (Minow 1998, pp. 1315, 121122, 129). They
are told that they should forego bitterness and hatred, and give up revenge since
revenge does not restore but only leads to escalation, excesses and mutual destruc-
tion. It destroys ones own life and upsets the society. The victims should not
express rage. Instead, they should recognize the legitimate limits of feeling over the
wrongdoing they experienced.
Like the perpetrators even if it is painful for them and they fear the conse-
quences (here their powerlessness and the threat of silencing retaliation should be
kept in mind) they should testify for the sake of TJ&R. Even if they would rather
forget their pain, they are told they should remember, tell and heal. The promise of
healing through telling is offered to them just as to the perpetrators, although there
is no or very split evidence that testifying actually helps victims in any way (Henry
2004, 2009, Mendeloff 2009). There is no evidence that crime tribunals instill fear
of punishment in the perpetrators. Also evidence is that victims are offered a sense
of justice, relief from trauma, or made less vengeful and less likely to engage in or
support violent retribution is capricious (Mendeloff 2009).
Finally, the victims are told not to degrade or deny the dignity of the wrongdoer
and to leave the retribution to the more objective and more neutral third parties,
Journal of Political Power 375

such as the members of TC or the lawyers and jurors (Minow 1998, pp. 912).
They should forgive because forgiveness is a key to nding ones peace and truly
forgetting the past with all its atrocities. The burden of reconciliation is thus placed
on the victims who, although they have the right to rage and many profound rea-
sons not to forgive, are told that they can only achieve empowerment when they
voice their forgiveness (Grunebaum 2002, pp. 307308, Schfer 2011, pp. 160
Arguably, then, the well-meaning participants in the discourses about the
TJ&R-institutions have imposed many more feeling rules on the victims than on
the perpetrators. The discourses about why these institutions are good for victims
can be read as manuals in the emotions management meant for victims. These tell
the victims how to think/reframe their situation. Allegedly in their enlightened self-
interest, they should remember and tell, and heal and forget; even if for many rea-
sons they want to remain silent (Schfer 2011, p. 159). They should engage in
emotions management, getting rid of such destructive emotions as hate, bitterness
or rage, for the sake of their society, TJ&R, transition to democracy, peace and
prosperity. Such, numerous or demeaning demands are not placed on the perpetra-
tors. Some authors make clear that TJ&R is their chief concern, leaving the discus-
sion of how these aims affect victims out or for the end (Minow 1998, Rotberg
and Thompson 2000, Wald 2002, Hayner 2010[2001], Buckley-Zistel and Kater
My argument therefore is: while the War against the elite/state Impunity and the
R2P have found their institutional assertions in the newest TCs, ICTs and the ICC,
they have been undermined in powerful ways, in part by the very same movement
which has worked for them. Calls for limiting compassion for the victims and,
simultaneously, for extending compassion to the perpetrators and the by-standers
have multiplied. This is not just a result of power asymmetries which even in post-
atrocity contexts often favor former power holders, but, as I tried to show, of the
discourses promoted by some of the strongest supporters of the movement for
TJ&R. Archbishop Tutu, the UN and the EU, spreading the discourse of reconcilia-
tion at the expense of truth and justice, also play an important role in tilting the
balance towards less compassion for the victims and more for the perpetrators.
Theirs is a call for reintegrating the perpetrators, giving them a chance.
The inuence of the therapeutic discourse replacing the moral discourse should
not be forgotten: it is not right-and-wrong that decides how the perpetrators, victims
and by-standers are seen, but instead the all-encompassing victimization perspec-
tive: as a matter of a general therapeutic principle suffering is a great equalizer. It
puts the suffering of the victim on an equal footing with that of the by-stander and
the perpetrator.
The therapeutic discourse calls for sensitivity and for giving a chance to the
by-standers who suffer shame because they did not see and the perpetrators who
now suffer guilt because of their crimes. The therapeutic discourse manages the art
of squaring the circle, of comparing the incomparable, converting the lowest com-
mon denominator the suffering into a prism through which to see and forgive.
The therapeutic perspective dovetails with the reconciliation discourse: victims
and perpetrators alike can achieve healing when they remember, tell and forgive.8
The joint therapeutic-reconciliation perspective leaves out that the perpetrators were
responsible for mass torture, disappearances, killings and rapes for which there is
no restitution.
376 H. Flam

The tendency to downplay the suffering of the victims is also found in the ICTs
and the ICC. Judging by the debates on this topic, the ICT and the ICC lawyers
spend most of their time worrying about the rule of law, and in particular about the
innocent until proven guilty-principle, consistent codication, meticulous enact-
ment of laws, fairness and neutrality towards the accused, adequate defense, docu-
mentation and proof (Minow 1998, pp. 37, 4647, Wald 2002). Patricia Walds
(2002) text may serve as an example here. She was a judge in the ICTY between
1999 and 2002. Her text refers in afrmative terms to witnesses and their suffering
on one page, the rest of the text is devoted to their decits as witnesses and testi-
mony-givers, and to the decits of the sympathetic treatment of war crime wit-
nesses by the judges (pp. 233235, see also Zahar 2010). The text shows no
understanding for expressions of moral outrage, anxiety, or of other strong emo-
tions leading to blowing up or to breaking down in court (Wald 2002, p. 233). The
costs of bringing witnesses to the court and/or granting them protection programs
also weighed heavily on her mind, suggesting that these should be cut.
Critics of TCs, ICTs and the ICC point out that victims are promised a hearing,
but their hopes of having their story heard are frustrated. Speaking in particular of
female victims of sexual abuse, they stress that commissions are usually unprepared
for hearing their testimonies. When under NGO pressure an institutional room for
such hearings becomes created, as was the case the T&R in South Africa, the hear-
ing committee showed no sensitivity or patience for the forms or dialects in which
the stories were told. It treated the speakers as victims in need of emotional expres-
sion and of catharsis, becoming visibly irritated when these rejected this pathologiz-
ing stereotype. The victims of racism and sexism refused to be re-sexualized and
re-racialized (Grunebaum 2002, Gericke and Mhhuser 2011, pp. 103109,
Schfer 2011, pp. 159164).
As far as the various ICTs and the ICC are concerned, it took until the end of
the last century before the laws acknowledged this type of human suffering, even
though denitions are still far from perfect (Glasius 2006, pp. 8689, Gericke and
Mhlhuser 2011). The looks even worse. At the preparatory stage, women were
told to hold back their emotions and also how to rephrase their stories. In the court-
rooms, they were actually silenced by insensitive questions, interruptions and
prompts fragmenting and detouring the story, rushed to tell relevant facts, not
given time to express grief about the deceased, outrage or stunned incomprehension
over mass atrocities they saw and/or were subjected to, put under hostile cross-
examinations calling for simple yes or no answers. They were re-victimized by
the (i) insensitive, ignorant or sexualized comments and questions and (ii) defense
lawyers questioning their sanity and their ability to remember (Wald 2002,
pp. 225230, 233239, Dembour and Haslam 2004, Henry 2004, 2009, Gericke
and Mhlhuser 2011, pp. 91109, Ristic 2013, see Whittier 2009 for similar
developments in the US from the late 1980s on as well as De Haan and Loade
2002 for general trends). Although the law for the ICTY is meant to hinder ques-
tions about consent or past sexual conduct incriminating victims of sexual abuse,
these were asked nevertheless (Wald 2002, p. 222, see Henry 2009, p. 127).
This is not to say that I am for incompetent judges or hearings defying the right
of the accused to defense, but I do want to pose, as an issue the unduly exagger-
ated concern with the legitimacy of the ICTs and the ICC on the part of the trans-
national participants in the debates about TJ&R. Worrying about defending the
ICTs and the ICC against the accusation that they stand for victors justice or are
Journal of Political Power 377

politicized or apply law retroactively (cf. Minow 1998, p. 31) should not lead to
insensitivity and cruelty towards victims acting the part of witnesses. These institu-
tions focus on enormous transgressions which regular laws created for everyday
crimes were not meant to handle. As the critique related to the ICTY, ICTR and
the ICC suggests, not only laws but also hearings as legal practices need to be
rethought to do justice to the victims of crimes against humanity. The victims
should not have to apply themselves better to t to standard legal rules, procedures
and practices but on the contrary, new laws, procedures and practices have to be
proposed and tested out to accommodate the victims of atrocities. And these should
be applied not only to the non-West.
Among many of those who created or experienced the initial wave of enthusi-
asm for the TJ&R, its disappointing accomplishments have caused much frustration
and cynicism or outrage. Still, enough enthusiastic popular and expert support is
there to sustain this movement. Let us hope that it will work to improve what it

Concluding remarks
I have argued that part of the broader human rights movement that I dubbed the
movement for TJ&R can be understood as not just a legalmoral regime but also a
set of feeling rules specifying how the West should respond to past/distant human
suffering. I focused on the rules proposed by (i) the Western armchair critics of
the West; (ii) the TNGO activists working for Western humanitarian and human
rights organizations and (iii) disparate professionals, such as lawyers, historians or
educators, and their critics, all participating in a transnational debate about the emo-
tions required from the perpetrators and victims who appear before the TCs, ICTs
and the ICC.
All three discourses hold that neither the compassion for the victims nor the
indignation for the perpetrators should be impulsive or hot. Instead, they advocate
cooled emotions and fact-nding so that the direction of these emotions can be got-
ten right. Only upon reection and fact-nding investigation, should these emo-
tions be expressed with great intensity. This means long waiting times for the
actual victims.
It also amounts to the domination of the legal principle of innocent until pro-
ven guilty. This principle is reinforced by the current `therapeutic` view that even
perpetrators and onlookers because they feel ashamed or guilty about their past in
fact suffer, and therefore should be listened to and given a chance of rehabilitation
and reintegration. The `therapeutic` view in turn dovetails with the multiple UN,
EU and domestic elite pressures to pursue reconciliation to secure peace, stability
and democracy. Victims seem to stand last in line.
The predominance of the principle `innocent until proven guilty should not
overshadow the bi-modal emotional regime proposed for different TJ&R
institutions. Before TCs, witnesses who most often are also victims are expected to
display their anguish and trauma. Before tribunals and courts, they are urged to do
just the opposite, that is, control their emotions and display cool rationality. This is
to say that strong pressures exist to produce either a traumatized-emotional or an
abstract-rational victim.
Only a small minority of dissenting voices have opposed the dominant dis-
course proposing this bi-modal emotional (rule) regime. As the third part of my text
378 H. Flam

shows, critics focus on the disrespect with which victims, their suffering and their
legitimate emotions are treated. Some take the perspective of the victims to argue
for letting victims express their moral outrage and grief before the ICTs and the
ICC, for more sensitive practices, and for letting them maintain their composure if
they feel like it before the TCs. Others pinpoint that these institutions are simply
inappropriate for the expression of grief, sorrow, remorse, anger, rage or moral out-
rage. They therefore argue for either creating separate times and spaces for the
expressions of grief, rage, hatred and non-forgiveness (Grunebaum 2002, p. 309) or
relying on the media, to produce memoirs, documentaries, paintings, history books
etc. in which victims can freely express their fully legitimate emotions (Schfer
2011, p. 163). From my point of view, such separate times and spaces should be
provided, organized or seized, but at the same time the transnational movement for
TJ&R should become more self-critical about the burdens it places on victims. It
should move to demand laws, procedures and practices capable of accommodating
the enormous post-atrocity human suffering just as it is.
A great obstacle to such reection and demand is constituted by the very repre-
sentatives of professions populating the IOs and TNGOs, who have staked out and
remain loyal to the bourgeoning TJ&R transnational political regime. For wrong
outcomes, such as, for example, inefcient court procedures, too few sentences or
too few sentences of key gures, they blame the major powers, specic Western
states or the asymmetries of power between the (former, at times still current) per-
petrators, who often are in power in the post-atrocity phase. Their blind spot is
their own role in the emerging transnational TJ&R regime. They do not see that
they themselves as participants in a transnational effort to combat elite impunity,
pursue truth and justice, and secure peaceful transitions to durable democracies
shape the TJ&R institutionalizations in ways that not only in legal terms but also
in terms of actual practices and emotional rule regimes are disadvantageous to
Particularly numerous among the loyal supporters of the TJ&R are lawyers, his-
torians, therapy/trauma specialists, forensic specialists and social scientists. These
professions not only push for but also derive their employment opportunities,
income and prestige from the very institutionalizations of the TJ&R that they have
so decisively shaped and that they are very keen to keep legitimate in relation to
their professions and powers (Leys 2000, Hirschl 2007, Mendeloff 2009). Their
preference is for funds to be invested in historical archives and forensic evidence
documents and bones rather than witnesses testifying about the facts.
Emerging is a new Bourdieuian social eld. The ICC alone employs about 600
persons. It is assisted by 2500 NGOs gathered under one umbrella organization and
representing 160 countries. Their efforts are paralleled by an unknown number of
other NGOs. The ICTY has 787 staff members, representing 77 nationalities. The
Rwandan Tribunal fares not much worse: For biennium 20102011, the General
Assembly of the United Nations approved initial appropriations for ICTR of
$245,295,800 gross ($227,246,500 net) and authorized 693 posts for 2010 and 628
posts for 2011. 77 nationalities are represented at the Tribunal (Arusha, Kigali, The
Hague and New York) (see Links).
The ICC, the ICTY and their respective (T)NGOs live in a symbiotic relation-
ship. This, arguably, explains the (T)NGO blind spot(s) and their failure to loudly
criticize an emotional regime buttressing blatant asymmetries of power. Most (T)
NGOs keep silent for fear of jeopardizing not only their own existence, but also
Journal of Political Power 379

the hardly won (legitimacy of) institutions intended for the exercise of global jus-
tice. They have made themselves captive of lawyers and other professions who
shifted from victim-advocates to perpetrator-advocates in their bid for power. How-
ever, the accumulating frustration topped by three recent acquittals indicating suc-
cessful political pressures applied by weapon-producing countries to make sure that
delivery of weapons as well as nancial and military support would not become
turned into a criminal act (Gordy 2013) is bound to change both. The global justice
regime, just like its emotion counterpart, is still in the making.

The author thanks Katarina Ristic for her valuable comments, references and gures on the
ICTY. Thanks are due to the anonymous reviewers; Jonathan G. Heaney for his thought-
prompting questions and correcting my English, and Jochen Kleres for reminding me of
similar legal trends in the West. I greatly beneted from a conference organized by Dagmar
Ellerbrock at the Max Planck Institute for Human Development in June 2013. Comments by
Juliane Brauer, Suzanne Karstedt, Allen Feldmann, Roger Petersen and Roland Weierstall
were particularly useful, and conrmed the main theses of this article. I am also very grate-
ful to Mischa Gabowitsch for conceptualizing the conference Translating Atonement. Can
Countries Learn from Each Other? organized by the Einstein Forum and the Hamburger
Institute of Social Research in Berlin and Potsdam on 24 June, 2011. This excellent confer-
ence moved me to formulate several key theses of my article. I would also like to thank the
director of the historical unit at the Max Planck Institute for Human Development in Berlin,
Ute Frevert, its Film Club and Christine Becher for their hospitality.

1. Although in the case of the ICTs or the ICC, the agenda for legal reasons seems much
clearer than that of the TCs to engage in the pursuit of truth and justice, and, upon
the due consideration of evidence, to punish the guilty researchers argue that the
founding documents of the ICTs and the ICCs indicate the wish to contribute to rewrit-
ing the past and to reconciliation as a solid foundations for the shared future (Wald
2002, Dembour and Haslam 2004, Henry 2009, 2010). This agenda can be pursued only
in modest ways due to the political counter-will of various ruling elites, limited interna-
tional and/or national resources, missing courtrooms, lawyers, witnesses, experts,
insufcient time for persecuting/hearing witnesses, the biases of judges or experts, the
difculties attending the capturing of perpetrators or securing witnesses, etc. (Minow
1998, pp. 26,3942, 45, Hayner 2010[2001], Buckley-Zistel, pp. 720; Buckley-Zistel
and Oettler 2011, pp. 2137, both in Buckley-Zistel and Kater 2011, Rotberg and
Thompson 2000; Zistel and Kater 2011).
2. Crimes against humanity refer to serious attacks on human dignity or a degradation of
human being(s) as part of an intentional, widespread and/or systematic practice
(Mazlisch 2009, P. 36). At present, among the crimes against humanity, we nd the
following: murder, extermination, enslavement, deportation, enforced population
transfer, imprisonment, torture, rape, sexual slavery, enforced prostitution, forced
pregnancy, enforced sterilization, persecution, enforced disappearances, apartheid, etc.
3. The anti-land mine campaign laid the foundation for a new network of government,
NGO and IO representatives willing to cultivate cooperative, multilateral, transnational
relationship aiming to constrain unilateral actions of the powerful (Axworthy 2008,
pp. 243,246, Mazlish 2009, p. 51). This coalition, also known as the Human Security
Network, posed human security as an issue in contrast to national or international
security (Axworthy 2008, pp. 244, 246247). It became the main mobilizing and expert
force behind the Rome Conference and, more exactly, the UN Diplomatic Conference
of Plenipotentiaries on the Establishment of an International Criminal Court leading to
the Rome Statute of the IIC signed by 104 states in 1998. When 60 states became
380 H. Flam

parties in 2002, the ICC could be set up. (By 2010 104 states/parties signed, by
2012 121).
4. For the UN, the issue was that the UN/the international community was under the re
of critique for intervening ineffectively in Somalia, too late in Bosnia and Kosovo and
for not intervening in Rwanda at all (Smith 2010, Rodrigues 2012). All apart from the
humanitarian and human rights considerations, a consistent set of criteria for legitimate
interventions was called for. Responding to a call by the secretary general, the Interna-
tional Commission on Intervention and State Sovereignty (ICISS) was set up in 2000. It
presented a report, The Responsibility to Protect, by the end of 2001, in which state
sovereignty was said to imply responsibility for the protection of the people (Rodrigues
2012, p. 3). After several other reports, approval by the General UN Assembly in 2005,
and general consensus at the 2005 World Summit, the R2P established itself as the fun-
damental doctrine for international interventions, but the political entrepreneurs within
and outside the UN, seconded by a broader movement, are still working on how to
implement it (Rodrigues 2012, p. 4). Of relevance here is that the ICISS report stated
that the international community, after exhausting a broad variety of means of persua-
sion and instruments of pressure, not only has an obligation to step in to prevent and to
react to a critical humanitarian crisis caused by a state unable or unwilling to deal with
it. It also has an obligation to rebuild a people/country destroyed by such a crisis with
the aim of achieving security, good governance, economic and social development as
well as justice and reconciliation.
5. The tribunals for former Yugoslavia and Rwanda were mandated by the UNSC, while
the ICC by multilateral negotiations of about 160 states. Also unprecedented is the
ICCs denition of crimes against humanity as (i) disassociated from war crimes and
(ii) not requiring proof of discriminatory intentions it is recognized that such acts as
apartheid or enforced disappearance speak for themselves (in contrast, the tribunals for
former Yugoslavia and Rwanda still called for proof of destructive intentions in the case
of genocide) (Mazlish 2009, pp. 5354). The ICC is to address the most serious crimes
of concern to the international community as a whole (Mazlish 2009, p. 60). Thus, sub-
ject to the jurisdiction of the ICC is any inhumane act committed by states or individu-
als. The preamble of the Rome Statute weakens its thrust as it reasserts state
sovereignty: the Statute does not authorize any state to intervene in an armed conict or
in the internal affairs of any state (in contrast, the Nuremburg Trials did not question
state sovereignty and prosecuted only individuals for crimes against humanity an
euphemism for genocide adopted by the French prosecutor, as well as for crimes of war
and humanitarian crimes.). China and the USA have not signed the Rome Statute.
Russia signed but has not ratied.
6. Each author adopts another term as appropriate to label the emotion that should be felt
with respect to distant human suffering: Boltanski speaks of the politics of pity dividing
the world into those who suffer and those who do not and argues that suffering can be
addressed politically; he denes compassion as an apolitical practice (Boltanski 1999,
pp. 37); others reject pity and sympathy as implying superiority of the person feeling
it towards their object; and Sontag uses sorrow, compassion, pity, etc. interchangeably.
Not even two authors can agree on the meaning and implications of the concept of
compassion. This is a fairly typical state of discussions about emotions. Since it is not
my goal to explore one or more emotions and key psychologists argue that they come
in bundles anyway, I adopted compassion and indignation as the two generic concepts
or labels; without engaging in a long discussion of their history, meanings and
implications. They are only interesting to me insofar as one calls for feeling with and
for the victim while the other calls for the emotional rejection/condemnation of the per-
7. The failure of the T&R Commission for South Africa to elicit remorse or admissions of
guilt on the part of key actors running the regime and/or direct perpetrators came as a
shock to, for example, Archbishop Tutu, a key mastermind behind the commission.
Also, the arrogant presumption on the part of some perpetrators that appearing before
the commission guaranteed them amnesty as well as the immediate forgiveness of both
victims and society at large took some key promoters of the T&R Commission com-
pletely by surprise (Minow 1998, p. 17), revealing how nave they were. These surpris-
Journal of Political Power 381

ing insights into the perpetrators have entered the discourse about the commissions and
contributed to structuring the Rwandan Commission so that no amnesty option was
attached to disclosing the truth.
8. See Minow (1998, PP. 5, 14, 18, 6670 and explicitly p. 147) for the need to seek truth
(history), forgiveness (theology), justice (punishment, compensation and deterrence),
therapy (healing), art (commemoration) and education (learning lessons). She believes
in the restorative power of truth-telling (1998, pp. 6670). Minow neither sees the
problem of joining the therapeutic with the legalmoral nor that of remembering and
yet forgetting/seeking closure.

Notes on contributor
Helena Flam received her Fil.Kand. in the Lund University, Sweden and gained her PhD at
Columbia University in the USA. As a professor of sociology, she has been teaching at the
University of Leipzig since 1993. Her rst publication on emotions, The Emotional Man,
came out in two consecutive issues of IS in 1990. She has been publishing on emotions,
social movements and work organizations ever since. She is a co-founder and a loyal mem-
ber of the European Emotions Network.

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