Pursuing Justice in Comparative Perspective

Melissa Nobles
Professor of Political Science
M.I.T.

Today, international news regularly reports about truth commissions, trials, or some other process being contemplated or implemented in one country or another. Beginning in the early 1970s, with what political scientist Samuel Huntington described as the “third wave” of democratization, efforts by incoming politicians to address the crimes of outgoing repressive rulers have multiplied. Trials (both domestic and foreign), truth commissions, lustration, restitution, apologies, monuments, etc. are now fixtures of the political landscapes of societies transitioning to democracy or emerging from civil wars. Once relegated to the margins of the general study of democratization, “transitional justice,” as it is now known, has emerged both as field of study and a political force in its own right.

However, the United States and specifically, its southern region are not usually included in the comparative and international study of state crimes. Although there is growing interest in South Africa’s Truth and Reconciliation Commission (TRC) as a model for the American South today, comparative study is woefully underdeveloped. This oversight is unfortunate and unwarranted because it reinforces a view of “American exceptionalism,” and also impoverishes our understanding of U.S. political experiences. This short article is a first attempt to bridge this gap by focusing on how the recent Henry Dee/Charles Moore settlement fits within larger international trends. As we shall see, the difficulties and rewards of addressing past crimes in the U.S. are not exceptional but very much in keeping with international experiences.

Democratization: Why include the United States?

The first question to answer is: Why include the U.S.? Is the U.S. really comparable to other countries that have recently transitioned from authoritarian rule or civil war? The answer is yes, although this answer requires clarification, if not defense. Most U.S. textbooks, and much serious scholarly writing, celebrate American democracy with varying assessments of how much undemocratic practices should qualify the description. The issue turns, in part, on how democracy is defined. According to the late political scientist Samuel Huntington, a democratic system is one where “its most powerful collective decision makers are selected through fair, honest, and periodic elections in which candidates freely compete for votes and in which virtually all the adult population is eligible to vote.”1 It is a minimalist definition, which has been judged insufficient by many scholars, on both empirical and theoretical grounds. Theoretically, electoralist conceptions seem overly narrow, excluding from consideration elements of democracy not simply connected to elections; for example, extensive provisions for individual and group freedoms, strong independent institutions (e.g. judiciary), robust civic associations, and a diverse and independent media. Empirically, the experiences of “third wave” democratization reveal that while many countries may meet the electoral threshold, they are unable to meet liberal democracy’s more demanding threshold.2  So, where does the U.S. fit?  On Huntington’s procedural definition, it is a straightforward call. As he writes, “To the extent, for instance, that a political system denies voting participation to part of its society . . .as the United States did to the 10 percent of its population that were southern Blacks – it is undemocratic.”3 Not surprisingly, other political scientists have reached the same conclusion, describing the south prior to the 1965 Voting Rights Act as, a  “restricted democracy,” 4 or “authoritarian enclave.”5 The Civil Rights movement was many things, but for the purposes of comparative study of transitional justice, it is best understood as a democratizing movement of the authoritarian south.

However, although comparison is appropriate, it is necessary to point out significant differences between the American experience of democratization in the mid-1950s and those of “third wave” democracies of the 1970s onward.  First, America’s democratization process was protracted, lasting nearly 200 years, with full democratization (as defined electorally) enabled by the Voting Rights Act of 1965. Nearly all of the “third wave” democratic transitions were of relatively short duration. Second, the sub-national and regional character of democratization also distinguishes the U.S. from other transitions, which were national in scope. Third, U.S. civilian control of government differs from a number of countries that transitioned from both authoritarian and military rule. U.S. Military and state police forces are subordinate to civilian leadership in matters of governance.

It is also important to acknowledge here that the undemocratic and authoritarian description of the pre-1965 U.S. south is not uncritically shared. First, it is not a popular description, even if the public is aware of slavery and Jim Crow. It is not popular precisely because it cuts against basic and deeply held views of our national history and identity. Second, even among scholars who agree with the description, they urge care in its use. Here, they object to a “Southern exceptionalism” that characterizes political, sociological, and historical analysis of the region. The south, they argue, has been erroneously treated almost as if it were another country, disconnected from national political life and institutions. Too frequently, scholars portray southern states as constituting “an intractable region alternately deviating from and dominating an otherwise liberal nation.”6  On this view, racial subordination – by law and custom – is treated as a Southern and not national phenomenon. Of course, careful and serious students of southern politics have necessarily studied state politics within the context of national politics.7 Federalism requires a duel focus on both federal and state governments. And scholars have documented racially discriminatory laws and customs in the north and all other regions of the country. In any case, the anti-southern exceptionalism argument usefully reminds us that the region, its institutions, and history are as “American” as any other. Southern history is American history.

Democratization and Transitional Justice

Having established that it is reasonable to approach U.S. political events as a process of democratization, the next related issue is that of transitional justice. The term “transitional justice” is commonly used to describe the multiple mechanisms of trials, truth commissions, property restitution, reparations, apologies, public monuments, etc. The term is also more than descriptive. It conveys a normative understanding about what these processes are meant to achieve, namely, some measure of justice to victims and/or their families for crimes (both violent and not) committed by agents of the state and quasi-state actors.

As is well known, the issue of what to do about past crimes is quite contentious all around the world.  Much of that contention turns on identifying and overcoming the constraints to remedy. The truth is that despite moral and philosophical arguments and expectations of punishment and remedy, such outcomes have been difficult, but not impossible, to come by. In accounting for outcomes, political scientists have tended to focus on the exercise of power, so justice is viewed as a reflection of political power. On one level, examining the balance of power at the time of the political transition goes a long way in explaining outcomes, at least in the immediate term. Legal and moral arguments about the necessity of either punishment or amnesty do not, in the end, well explain actual outcomes. What best explains them, according to Huntington, are the “nature of the democratization process, and the distribution of political power during and after the transition.”8 In short, outgoing authoritarian regimes that commandeer the political transition virtually always grant themselves amnesties. On the flip side, outgoing regimes that are week and are ousted from power usually face some form of punishment.  A quick overview of international experiences in Latin America, Southern and Eastern Europe, and Southern Africa all bear out this central claim: that “might makes right,” or more accurately, might defines what is possible. For example, a comparison of South Africa and Argentina is instructive.

The opposition African National Congress (ANC) desired prosecution of National Party leaders and other officials of the apartheid regime. The National Party desired amnesties. The compromise was the Truth and Reconciliation Commission (TRC), which offered amnesty to those who fully and publicly confessed their crimes before the commissioners, family members, and the interested public. Here, truth as justice replaced conventional retributive views of justice. In South Africa, the testimony of perpetrators replaces prosecution, where their testimony could not be compelled. This is in stark contrast to Argentina, where, for example, the incoming democratic regime established a truth commission, the National Commission on the Disappearance of People (CONADEP), whose published report, Nunca Más, aided in criminal prosecutions. The difference in approaches is due, in large measure, to the balance of power between incoming democratizers and outgoing authoritarian leaders, where in the case of Argentina, incoming rulers prosecuted weakened and discredited military leaders. It is important to emphasize, however, that Argentina’s experiences of prosecuting military officers were uneven, contentious, and protracted. In South Africa there were no trials and the trade-off between truth and justice has been presented not only as a political necessity but also as a political virtue. The view is that the TRC, through its truth-seeking processes, advanced societal reconciliation.

How might these insights about the distribution of political power be applied to the U.S. South? To be sure, political times in the South were tumultuous and contentious. But the transition from authoritarian Jim Crow to democratic rule did not result in a fundamental reordering of political and judicial institutions, as was done or attempted in other recent “third wave” democracies. Instead, most generally, there was the expansion of the franchise, the dismantling of a discriminatory legal structure and the promotion of policies aimed at full inclusion of African-Americans.

More specifically, Mississippi’s surveillance apparatus was eventually dismantled.  That state’s legislature authorized the creation of the Mississippi Sovereignty Commission in 1956, two years after the Brown vs. Board of Ed decision. The Commission had broad investigative powers, which were used to essentially spy on citizens involved in (or suspected of involvement in) civil rights activities. Surveillance, either by observation or informants, was extensive, resulting in “. . confidential files on 87,000 people, making it the largest state-level spying effort in U.S. history.”9 In 1977, the state legislature disbanded the Commission. However, none of the elected (i.e. governors or state legislators) or non-elected officials who served on Commission faced punishment or any other negative repercussions, as far as I know. In fact, one former legislator, Horace Harned, who served on the Commission spoke openly about certain of the Commission’s activities in a published 1998 New York Times Sunday Magazine interview. According to Harned, native Mississippians who the Commission identified as civil rights activists often lost their jobs and frequently had to move out the state in order to work. Activists from outside of the state were, in Harned’s words, “treated like prisoners – they were arrested and tried, for disorderly conduct and whatnot. A judge sent them to prison.”10

It is true, then, that American democratization has created different conditions for the consideration and pursuit of transitional justice than in other countries. Yet, there are two fundamental and shared conditions. The most important is that violent crimes were often enabled, if not committed, by agents of the state. In our case, these actors are southern police officers and other law enforcement officials. The non-enforcement of laws regarding white criminal behavior and the legal force of white supremacist social norms essentially created a climate of impunity. Judicialmeasures assist to reveal and repudiate, through prosecution, such impunity. Such repudiation will be incomplete in the U.S., given the passage of time. Nonetheless, justice would seem to require it.  Second, the pursuit of justice rests not only on political will, but also on administrative and institutional capacity. Given the basic strength of American legal institutions, there is a strong expectation of legal and other investigative proceedings.

Expectations Defied in the World and in Mississippi

International experiences show that the distribution of political power largely determines whether state or quasi-state actors are punished or not. However, social scientists made several other predictions that are not well borne out. Many expected that demands for justice for would be relatively short-lived. Public interest and rage would quickly fade, as daily and future-oriented concerns overwhelmed those about the past. The general public would soon lose interest, taking the pressure off of political and civic leadership. Scholars also predicted that new politicians would have neither the political will nor interest to revisit the past. What would the electoral or political advantage be in looking backwards? Few scholars saw political benefits.

As it turns out, several experiences defy these expectations, and we can now count the Henry Dee/ Charles Moore settlement among that number. For the most part, scholars and the general public seem to think that the passage of time will diminish desire for justice and remedy. Indeed, the terminology of  “cold case” well captures the emotional dimension presumed to attach to such cases. It is “cold, “ in part, because interest and passion is no longer attached. In one way, this observation about society’s relatively short attention span seems true. However, what scholars and the public underestimate are the will and commitment of a select group of citizens who are often directly connected to the issues for personal and professional reasons. These citizens include victims and/or their family members, journalists, attorneys, clergy, and human rights activists. They are the ones who keep the memories alive, insisting most persistently for remedy and accountability.

In Argentina, for example, the Mothers of the Plaza de Mayo remain organized, continuing their advocacy for information about their “disappeared” children for decades, beginning in the late 1970s. In Spain, beginning in the late 1990s (more than twenty years since Spain’s transition) citizen groups, such as the “Association for the Recovery of Historical Memory” (ARMH) have formed to advocate for recognition and compensation of General Franco’s victims.11 Moreover, with the election of a new prime minister in 2004, these groups, composed of descendants of Spanish Republicans, succeeded in getting a 2007 law passed (“Law of Historical Memory”) that requires the state to both support the exhumation of mass graves and to grant Spanish citizenship to descendants of Spanish Republicans forced into exile by General Franco’s fascist party.12 Finally, and most recently in June 2010, the UK’s Saville Report on the “Bloody Sunday” killings proved definitively that British soldiers acted unjustifiably in injuring and killing Catholic protestors in Northern Ireland in 1972. Surviving family members of the murdered had long pushed for the creation of an official government inquiry. In response to the Report, PM David Cameron publicly apologized before the House of Commons for the actions of British soldiers.

The dedication and persistence of the siblings of Henry Dee and Charles Moore are like that of families around the world. Most importantly, it forcefully undercuts the claim that time diminishes desire for justice. While it may be true for the public at large, it is not true for those most deeply and directly affected.  In some cases, family members and concerned parties are able to successfully marshal material resources and assistance to secure the desired outcomes.

Scholars also underestimated the effects of the passage of time on an evolving political environment. Just as scholars expected that time would diminish emotional attachments and the desire for remedy in society, they also expected that desires for justice would cease to be viable political issues as democracies moved forward. In one way, it is true that national political agendas are complicated and fluid. Often, yesterday’s concerns are quickly crowded out by the pressing issues of today. Yet, the experiences of democratizing societies demonstrate that past injustices can remain politically relevant if politicians and other political actors want them to remain so. For example, in post-communist countries, new legislative processes and the desire to win democratic contests, looking forward, best explain the persistence of justice issues. Poland is a useful example. Although Poland was the first country to topple communism, it was the last in Eastern Europe to pass a lustration law. (“Lustration” refers to the examination of public officials, politicians, and judges, especially to ascertain whether they had collaborated with or held positions in the secret police or other repressive agencies of the authoritarian regime.)13 In the first elections after the end of Communist rule, the Communist party retained considerable power, and therefore blocked lustration legislation. But by the late1990s, center-right parties gained more electoral power, in part, through reframing what “lustration” meant. That is, lustration  “became a shorthand for a host of issues that would engage a wide portion of the electorate for current and future concerns, and not the past.”14

Undoubtedly, the Dee/Moore settlement is the result, in significant measure, of a dramatically altered political environment in the region and country. The Voting Rights Act of 1965 has demonstrably increased minority representation in the South, particularly in those electoral units where African-Americans are the majority. Black politicians and black citizens exert political and social power more effectively than they ever have. And of course, the 2008 election of Barack Obama as President was due, in large measure, to the extraordinarily high turnout of black voters. Moreover, there is demonstrably greater interest in examining American history, and in particular, slavery and the Jim Crow period. To be sure, these topics and the Civil War are staples of American historiography and are subject to periodic reexamination. However, the most recent inquiries point to an expanding and deepening interest in the complexities and sheer horrors of our history. On my view, we are living in a more permissive and open intellectual environment. While these developments do not directly account for the outcomes of this particular case, they do help to provide a larger explanatory context.

The Paradoxes of Success

At the same time, there is a paradoxical aspect to success. The more politically powerful African-Americans become, the seemingly less compelling are arguments that the past must be remedied. After all, the fact that a member of a racial minority has been elected President suggests, at the very least, that that group may not easily be regarded as marginal and unable to exercise state power. Yet, presidential powers, even if exercised by a minority group member, are significantly constrained by embedded institutional arrangements and according to political scientists Desmond King and Rogers Smith, aspects of these arrangements should be conceptualized as “racial.”15  They argue that over the course of American history, the once prevalent “white supremacist” order has been displaced by an “egalitarian transformative order,” which is now challenged by an “anti-transformative” alliance, whose “actors and institutions oppose measures explicitly aimed at reducing racial inequalities.”16 Using their conceptualization, Obama’s election may well be regarded a result of this transformed racial order. Yet, his election does not and cannot obscure either the incompleteness of this egalitarian transformation or the power exerted by anti-transformative alliance(s).  In a general way, then, we should not expect demands for remedy to diminish as long as deep racial inequities persist.

Nonetheless, the conundrum created by successful democratization in the American south is a real one. It is also one that other societies have faced. How have they dealt with it?  Post-War Germany and post-Fascist Spain provide important lessons. Germany has, over generations, grappled intensely with its Nazi Past. This engagement grappling has taken two main, and inter-related, forms: reconstruction and remembrance. By reconstruction, I mean that Germany (with significant allied support in the immediate post-war period), recreated its political, economic, and social institutions to ensure that the conditions that lead to Nazism would not develop again. By remembrance, I refer to the ongoing memorials, monuments, museums, and the like. etc. dedicated to remembering Nazism’s victims. Here, the focus is on both the scope of the harms and on individual victims. The end result is an ongoing political project of never forgetting, while at the same time, ensuring that fascism will not emerge again by strengthening German political and social institutions. My point here is that remembering is viewed as compatible with progress and not inimical to it. In similar ways, Spain’s recent efforts of literally “digging up its past,” through the exhumation of mass graves and memory societies, also reinforce reconstruction and remembrance. Reconstruction today refers to a reinterpretation of Spanish history, where the Republic is viewed as a harbinger of Spain’s democracy today. As Julius Purcell writes, “. . .the memory associations are part of a wider discourse that seeks to force the Republic’s contemporary democratic relevance into the open: its freeing of Spain from the dead hand of the Church, its (attempted) abolition of rural feudalism, its support for women’s rights and progressive education.”17  Moreover, the identification of victims and their proper burial in individual plots underscores the point that democratic governance and life rest on individual welfare and on accountability.

This framework of reconstruction and remembrance is useful (and familiar) as we think about remedies and investigations moving forward. The broad and momentous successes of the Civil Rights Movement are rightly acknowledged and celebrated. However, the passage of national legislation and other important policy and legal reforms are not direct remedies for direct harms of violence and other acts of malfeasance. Nor does this legislation demand that the perpetrators of violent crimes be held accountable for their actions or such crimes be acknowledged and remembered. That is the point of trials and other efforts aimed at re-examining and accounting for past crimes.

References Cited

Anderson, Jon Lee. 2009. Lorca’s Bones: Can Spain finally confront its civil-war past?. The New Yorker. June 22, pp.44-48

David, Roman. 2003. Lustration Laws in action: the motives and evaluation of lustration policy in the Czech Republic and Poland (1989-2001). Law & Social Inquiry 28 (2):387-439

Diamond, Larry. 1996. Is the Third Wave Over? Journal of Democracy 3:20-37

Huntington, Samuel. 1991. The Third Wave: Democratization in the Late Twentieth Century. Norman: University of Oklahoma Press

Key, V.O. 1984. Southern Politics in State & Nation. Knoxville: University of Tenn. Press

King, Desmond and Smith, Rogers. Racial Orders in American Political Development. American Political Science Review 99 (1):75-92

Lassiter, Matthew and Crespino, Joseph. 2010. Introduction: The End of Southern History. In The Myth of Southern Exceptionalism, ed. Matthew D. Lassiter and Joseph Crespino, New York: Oxford University Press, pp. 3-22

Maass, Peter. 1998. The Secrets of Mississippi: Post-authoritarian shock in the South. The New Republic. December 21, pp.21-25

Mickey, Robert W. Fall 2008. The Beginning of the End for Authoritarian Rule in America: Smith v. Allwright and the Abolition of the White Primary in the Deep South, 1944-1948. Studies in American Political Development 22:143-182

Oshinsky, David and Rubin, Richard. 1998. Should Mississippi Files Have Been Reopened?. The New York Times Magazine, August 30, pp.30 – 37

Purcell, Julius. 2009. The Memory That Will Not Die: Exhuming the Spanish Civil War. Boston Review. July/August, pp.31-34

Rueschemeyer, Dietrich and Stephens, Evelyne Huber and Stephens, John D. 1992. Capitalist Development & Democracy. Chicago: University of Chicago Press

Williams, Kieran and Fowler, Brigid and Szczerbiak. 2005. Explaining lustration in Central Europe: a ‘post-communist politics’ approach. Democratization 12 (1):22-43