DEALING WITH THE PAST

Dealing with the Past (DwP) concepts put at the core of their interest the question of how states come to terms with gross human rights violations after armed conflicts, authoritarian and dictatorial regimes.

The term Dealing with the Past was initially associated with the policy and efforts of post-war Germany as it came to terms with the experience and the consequences of Nazi ideology and extermination policy during the Third Reich. Over time, the original German model of DwP assumed broader perspectives. In addition to including judicial, administrative, and legislative measurements to address past crimes, it also incorporated private, public, and scholarly debates; educational and curriculum-focused, and artistic approaches to past crimes. Moreover, the questions on individual and collective guilt and responsibility became prevalent.

Often, the term Transitional Justice is used in a similar context, sometimes even as a synonym for DwP. In 2004, the Secretary General of the UN published a report on "The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies" using the following definition:
"Transitional Justice [...] comprises the full range of processes and mechanisms associated with a society's attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. These may include both judicial and non-judicial mechanisms, with differing levels of international involvement [...] and individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals, or a combination thereof."[1] 

These mechanisms correlate with several victim-oriented rights and state obligations:

  1. The right to justice (e.g. combating impunity; enhancing accountability; prosecuting war crimes);
  2. The right to know (fact-finding and investigations and truth-finding and truth-sharing (truth commissions; search for missing persons; exhumations; story-telling; public testimonies, oral history);
  3. The right to reparation (material: restitution, compensation, rehabilitation / symbolic: apologies, annual anniversaries, commemorations, museums, revisions of school text books etc.);
  4. The guarantee of non-recurrence of crimes and other breaches of norms / institutional reforms:  demobilisation, vetting/lustration, security sector reform (police and military), judiciary and state institutions;

forumZFD in the Western Balkans has DwP as its focus of engagement and core mandate. Whilst acknowledging the importance of judicial processes and institutional reforms, forumZFD explicitly highlights the need of non-judicial measures such as collective memory work and peace education on different levels of society, especially the grassroots, community-based level.
forumZFD's understanding and approach is a broad, comprehensive one and tries to give  answer to several questions and shortcomings of current DwP- and TJ-concepts, such as:

  1. Transitional justice approaches have often been reduced to the notion of justice to prosecution and punishment, which resulted in the neglect of ‘softer’ components such as memory work. Questions of socially and politically motivated injustice and discrimination in post-war societies that endanger the establishment of sustainable peace have been overlooked; hence, root causes of conflicts and structural forms of violence have not been dealt with.[2]
  2. Although mentioned in TJ and DwP concepts, collective memory work, deconstruction of nationalisms, masculinity and heroism and creating a constructive culture of remembrance demand more attention.
  3. Dealing with the past and TJ concepts have focused on two social groups: victims and perpetrators, neglecting the necessity that it is a whole society and local communities that have to grapple with war- and other violence-related issues. The experience of a broad spectrum of a conflict-affected population is all encompassing, e.g. bystanders, opponents, war resisters, children, elderly people, women.

[1] Report of UNSG on the Rule of Law and TJ in Conflict and Post-Conflict Societies (S/2004/616) Available at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N04/395/29/PDF/N0439529.pdf

[2] See for example Diane Enns: Justice after Violence. Critical perspectives from the Western Balkans, Studies in Social Justice, Vol. 7, No 2 (2013)

DEALING WITH THE PAST