Reconciliaiton ≠ Transitional Justice

In tracing the legacy of reconciliation across Nuremberg, Yugoslavia, South Africa, Australia and Canada, there is at least one major difference in the latter two examples that demands explicit attention. Specifically, Nuremberg principles have traditionally been used to enforce measures of transitional justice for states beset by violence–the primary examples being El Salvador, Argentina, Chile and South Africa.[1] In transitional settings, the most immediate and material response to historical injustice is the removal of the government which perpetrated the crimes and the installation of a new, usually democratic, administration. The succeeding Truth Commission or TRC is both a means to redress the past and facilitate a smooth changeover to new leadership. Transitional Justice is a means of addressing “how emerging democracies reckon with former regimes” (Arthur 331, my emphasis).

The first Truth and Reconciliation Commission, which took place in Chile under Patricio Aylwin Azócar, is cited as one of the seminal cases of transitional justice and the first successful instance of political reconciliation.[2] Aylwin was the first president to be democratically elected following the military dictatorship of General Augusto Pinochet. Under Pinochet, it is estimated that 3,000 people were killed, 80,000 were interned and at least 30,000 were tortured. Aylwin’s election campaign thus centered on truth, justice, and addressing political prisoners and reparations for these crimes, a platform which, in the spirit of the Cold War and détente,[3] won him the election, much to the surprise of Pinochet and his supporters.

Before Aylwin, the international model for conflict resolution, constructed and reformulated in El Salvador and Argentina, had been the Truth Commission (Comisión de la Verdad), which namely focused on discovering the truth about the disappearances of citizens during military rule. Breaking from the precedent set by his neighbours, however, the new Chilean President established the Comisión Nacional de Verdad y Reconciliación (National Commission for Truth and Reconciliation) in March of 1990. By making peaceful relations a necessary compliment to finding truth, Aylwin significantly altered the shape of conflict resolution for all those who would follow and instantiated the TRC as a political means to smooth the transition into democracy. Indeed, Tutu takes up this model in his own commission as a means to facilitate Mandela’s own installation into power.[4] As such, political reconciliation came into favour in the international community as a handmaiden to the implementation of a democratic system. After the Commission’s report was completed, Aylwin announced its main findings on public television and offered a formal apology on behalf of the government for the acts of its agents. In this initial TRC, then, political transition and apology were mutually constitutive, each one allowing the other to exist.

However, there has been a major shift in the politics of reconciliation since Aylwin. Despite the slippage between reconciliation and transitional justice in recent studies,[5] quite obviously neither Australia nor Canada has experienced any substantial government transition as a result of the crimes against humanity that they seek to address. Liberal-democracy is both the wound and the salve in these nation states, an agent that is at once capable of harm and healing. In this sense, the stakes of material change are quite different between settler and transitional-justice reconciliations. Insofar as the agent of healing is often self-same to the agent of harm, liberal-democracies are at greater risk of falling into empty displays of contrition on a much deeper level than their transitional counterparts.

Any further study of reconciliation in Canada or other settler states needs to take into account the fundamental differences between transitional and settler reconciliation. Whether political transition is (or is not) occurring, or has (or has not) occurred, plays a major role in shaping what the subsequent reconciliation will look like. On the one hand, transitional reconciliation is developed out of governmental transformation (or even revolution). On the other hand, settler reconciliation is founded in the promise of change and performances that convince the audience that while the government remains the same, it will now act differently. To put this another way, without explicit political change to support it, settler reconciliation is performance only for the sake of performing; it differentiates itself from its former iterations, not by conceding the stage to new political actors, but by promising to take on a different role. As Australia helps to demonstrate, the anxiety around the distinction between liberal-democracies can result in a performative over-compensation, which elides the lived conditions of reconciliation as many Aboriginal people experience it.

Following this line of thought, I argue that Prime Minister Stephen Harper’s apology for Canadian Residential Schools represents a particular performative choice for Canada:

It has taken extraordinary courage for the thousands of survivors that have come forward to speak publicly about the abuse they suffered. It is a testament to their resilience as individuals and to the strength of their cultures.  Regrettably, many former students are not with us today and died never having received a Full Apology from the Government of Canada. The government recognizes that the absence of an apology has been an impediment to healing and reconciliation. Therefore, on behalf of the Government of Canada and all Canadians, I stand before you, in this Chamber so central to our life as a country, to apologize to Aboriginal peoples for Canada’s role in the Indian Residential Schools system.

There is little that I or anyone else can do here to demonstrate the degree of Harper’s sincerity in this speech (although I try to open up this question in more detail in chapter three). However, sincerity is not necessary to illustrate the performance implicit to this apology. First, as Harper himself acknowledges here, the “Full Apology” is being offered on Canada’s biggest political stage, the House of Commons. The convention of parliamentary performance carries with it the gravitas of a sanctioned action, providing a deeper opportunity for the audience to suspend their disbelief and buy into the scene as materializing real change in Canada’s symbolic order.

Second, as per my argument above, Harper makes sure to clearly distinguish his government from those that committed the crimes against Aboriginal people; in doing so he performs the transition that in other states founds the apology. Whereas transition and reconciliation are mutually constitutive in Chile and South Africa, in Canada, Harper uses the latter to validate the performance of the former, thus re-establishing the “simulacra of legalization” that Derrida identifies. In the passage quoted above, he clearly delineates his party from those who refused to apologize: “the government recognizes that the absence of an apology has been an impediment to healing and reconciliation.” Further, in earlier passages he also demonstrates a change in attitude from those who perpetrated the original offending legislation: “today, we recognize that this policy of assimilation was wrong, has caused great harm, and has no place in our country.”

What Harper is essentially doing here is reiterating the political transition that El Salvador, Chile and South Africa all based their reconciliation initiatives on as a nearly immaterial performance: since there is no actual political transition, he performs one, differentiating himself from, or disavowing, the political power that he has, in actuality, directly inherited. Beginning with a performance founds the subsequent reconciliation project in a much different, and potentially unstable, political ground. Canadian reconciliation relies on a language and a history that cannot readily be transported to a settler colonial system and thus radically alters the trajectory of reconciliation politics at a global level. Until the Canadian government recognizes the sovereignty of Indigenous peoples and recognizes their right to self-determination, there can be no such thing as Transitional Justice in this country. The “simulacra of legalization” in settler justice is thus a reconciliation that is always already distinct from political change, but nonetheless relies on the history of reconciliation qua transition as a way to validate its existence.

[1] See Hayner, Priscilla B. “Fifteen Truth Commissions–1974 to 1994: A Comparative Study.”

[2] See Paige Arthur. “How ‘Transitions’ Reshaped Human Rights: A conceptual History of Transitional Justice” Human Rights Quarterly 31.2 (2009): 321-367.

[3] Following the Cold War, citizens and academics in both the East and the West began to recognize that an alternative to power politics was necessary to avoid global destruction. Détente (the easing of tensions) signified the new international political climate.

[4] See No Future pp. 28-29.

[5] See the International Centre for Transitional Justice. http://ictj.org/our-work/regions-and-countries/canada

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