emotions and transitional justice

EMOTIONS AND TRANSITIONAL JUSTICEAuthor(s): Jon ElsterSource: Soundings: An Interdisciplinary Journal, Vol. 86, No. 1/2 (Spring/Summer 2003), pp.17-40Published by: Penn State University PressStable URL: http://www.jstor.org/stable/41179084 .

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EMOTIONS AND TRANSITIONAL JUSTICE

Jon Elster

I. Introduction

J7 motions matter in two ways. They matter because of what psy- chologists call their "valence": They can be intrinsically pleas-

ant or painful, desirable or undesirable. They also matter because of their "action tendencies": They can shape behavior. Often, they matter in the second way because they matter in the first. The six Frenchmen who killed themselves in June 1997 after being caught in a roundup of consumers of pedophiliac material did so (I assume) because they could not stand the unbearably painful emotion of shame. The same motive must have been at work in two French women, a mother and her daughter, who killed themselves in 1815 after being raped by Prussian soldiers.1 But emotions can also matter without any immediate conse- quences for behavior. I personally observed both the joy of the French when their team won the World Cup in soccer in 1998 and the gloom when it failed to make it through the qualifying rounds in 2002. The large impact of these events on the "gross national happiness product" was not mediated by behavior. Con- versely, when emotions do matter for behavior, valence need not be part of the causal story. I run away from a bear because I want to get out of harm's way, not to alleviate the painful feeling of being afraid.

In this paper, I consider a set of cases in which emotions shape behavior directly, with valence having a relatively minor role. These are episodes of transitional justice, briefly defined as trials and purges of wrongdoers and compensations to victims that occur after the transition from one political regime to another. In fact, the set of actions I shall consider is both narrower and

Jon Elster is Professor of Political Science, Columbia University.

Soundings 86.1-2 (Spring/Summer 2003). ISSN 0038-1861.



18 SOUNDINGS Jon Elster

broader than those covered by the definition. They are narrower in that I shall mainly focus on punitive behavior and broader in that I shall include extra-legal as well as legal forms of punishments. In the extra-legal behavior, we see emotions at work in raw form, whereas in the legal system they often occur transmuted into a demand for justice. I shall proceed as follows. In Section II, I briefly survey the main cases of transitional justice on which I shall be drawing. In Section III, I sketch some general features of emotion that explain important aspects of transitional justice, notably the tendency for sentencing to be less severe with the passage of time. In Section IV, I discuss how specific retributive emotions correspond to specific forms of punishment in transitional justice. I conclude, in Section V, with a discussion of the transmutation of emotion in transitional justice.

II. Transitional Justice

Although historians and others have written about individual episodes of transitional justice, such as the fate of the American loyalists after the War of Independence or the Nuremberg trials, it is only in the last decade that the topic has emerged as a ge- neric one. A milestone was the publication in 1995 of three large volumes of source materials edited by Neil Kritz.2 Without exception, the recent literature is limited to justice in the transition to (or return to) democracy. There are also instructive cases, however, of trials, purges and compensations in the wake of the restoration of monarchy, notably the English Restoration of 1660 and the two French Restorations of 1814 and 1815. Another limitation in the literature is the exclusive focus on 20th-century cases. The very first instances of transitional justice, however, are as old as democracy itself. At end of each of two brief oligarchic regimes, in 411 and in 403 B.C., the Athenian democrats came to terms with the past in ways that often anticipated recent procedures.

This being said, the bulk of cases involve transitions to democracy after 1945. The majority arrived in five geographical and chronological clusters:

■ Western Europe. After the end of World War II, processes of transitional justice took place in Germany, Italy, and Japan, as well as in a number of countries that had been occupied by or collaborated with Germany during the war (Austria, Belgium, Den- mark, France, Holland, Hungary, Norway).



Emotions and Transitional Justice 19

■ Southern Europe. In the mid-1970s, the fall of military regimes in Southern Europe induced transitional justice in Greece and Portugal, whereas in Spain a unique consensual decision was taken to abstain from opening the past.

■ Latin America. When many Latin American countries returned to democracy in the 1980s, limited transitional justice was observed in Argentina, Bolivia, and Chile. In Uruguay, a referendum confirmed an amnesty law enacted by parliament.

■ Eastern Europe. After the fall of Communism in 1989-1990, transitional justice took place in Bulgaria, Czechoslovakia and one of the successor states (the Czech Republic), the former GDR, Hungary, Poland, and (to a much smaller extent) Romania and Slovakia.

■ Africa. In the negotiated demise of the oppressive white regimes in Rhodesia (1979) and South Africa (1994), an important part of the bargains that were struck was immunity for the outgoing elite. In South Africa, though, the work of the Truth and Recon- ciliation Commission brought wide publicity to the human rights violations under apartheid. By contrast, following the 1991 transition in Ethiopia, several thousands of individuals have been tried for wrongdoings under the Dergue regime.

We may conceptualize processes of transitional justice as in- volving a sequence of decisions. The first, on which everything else turns, is whether to have transitional justice at all or rather to "forgive and forget," at least in an institutional sense. In Spain in 1978, there was a consensual agreement to forego transitional justice. In Uruguay, a national referendum in 1989 confirmed amnesty legislation passed by parliament. In the two major waves of transitional justice triggered by the defeat of Germany in 1945 and the collapse of Communism in 1989-1990, few people ques- tioned that some retribution and reparation would have to take place. The major exception is the former USSR, where demands for transitional justice have been muted both by the endogenous nature of the oppressive regime and by the long period of time since the worst excesses took place.

Once the decision has been made to proceed with transitional justice, one has to identify what counts as wrongdoing and as victimhood and to determine the appropriate reactions to either. Often, trials have targeted two categories of individuals: those who issued orders for criminally wrongful acts to be committed (e.g., members of the East German Politburo) and those who executed the orders (e.g., East German border guards). In addition, one may try those who transmitted the orders (Eichmann)




or those who facilitated their execution (Papon). Leaders of the pre-democratic regime may also be judged for treason, a crime that can be narrowly defined as collaboration with a foreign power or more broadly as any attempt to overthrow the legiti- mate government of the country by illegal means. Legal reactions include the death sentence, prison, and fines, as well as the re- scission of civil and political rights.

In purging the public administration, the new regime first has to decide on criteria for sanctioning officials. In countries that were occupied by Germany during World War II, officials could be sanctioned for "crimes of opinion," such as stating that Ger- many would win the war, expressing one's satisfaction that the country was occupied by Germany, criticizing the allies, stating one's sympathy with Hitler, making anti-Semitic statements or negative statements about the resistance and their sabotage ef- forts. They were also sanctioned for excessive zeal in collaborating with the occupying forces and for socializing with them. In Germany after 1990, charges of incompetence could also be used as a criterion for sanctioning officials. Such charges were brought against teachers of Marxism-Leninism in the universi- ties. Sanctions include dismissal, forced retirement, demotion, transfer, official blame (which may be an obstacle to promotion), salary cut, and denial or reduction of pension.

To compensate victims, one must first decide what forms of suffering constitute victimhood. Suffering may be material (loss of property), personal (harm to body or mind), or intangible (loss of opportunities). Within the category of property, one may further distinguish between real property and movable or personal property. Victimhood may be limited to the primary or direct victims of the previous regime or extended to include their relatives or heirs. One may also have to establish a cut-off point in time. In Eastern Europe after 1989, this problem arose in an acute form because of the successive processes of confiscation that have taken place since 1938. Forms of reparation include in-kind restitution of property, allocation of comparable property, financial compensation (lump-sum or pensions), career reinstatement, and priority in the allocation of scarce goods. In East Germany, for instance, victims of Nazi persecution were given priority for work, housing, and ration cards.




Finally, the new regime almost invariably faces difficult procedural decisions. The regular courts may not have the capacity to handle the large number of cases that suddenly arise, and they may themselves have been too deeply involved with the regime that is to be judged. The legal bases for indicting wrongdoers may be perceived as insufficient. Hence transitional justice more or less routinely involves violations of due process in the form of illegal internments, use of collective guilt, presumption of guilt, guilt based on strict liability, biased selection of judges and jurors, lack of adversarial proceedings, lack of appeal mechanisms, the use of special courts, retroactive legislation, and extensions of statutes of limitation.

Even though such violations of due process may occur, we may speak of a minimal form of legal justice as long as the outcome is not directly dictated by politics and some uncertainty persists about what will happen. Political justice, by contrast, occurs when government or parliament carries out transitional justice directly, bypassing normal or even minimal legal procedures. In the En- glish and French Restorations, the actions to be taken against the regicides were decided by the parliaments. In 1945, the Soviets wanted to turn the Nuremberg process into a show trial, but the Western Allies blocked their way. Some of the Japanese war trials, however, had a strong aspect of make-believe justice. In many transitions, the incoming regime has not even bothered to have show trials. Leaders and agents of the outgoing regime have simply been executed, whether for the sake of revenge or incapacita- tion. At the end of World War II, this was Churchill's idea about how to deal with the top Nazi leaders. Thus, in 1945, three options were on the table. The British wanted extralegal or military action, the Soviets wanted show trials, and the Americans success- fully insisted on having a genuine trial with real uncertainty whether some of the accused might be acquitted (as three of them eventually were).

Legal justice, however minimal, must also be distinguished from the private justice which occurs when individuals or groups take justice in their own hands because they do not want to wait for legal trials, do not believe there will be any trials, or do not believe that the legal punishment will be sufficiently severe. Pri- vate justice can take the form of extra-legal killings and humilia- tions. In the South of France in 1815, after the end of the




Hundred Days, "Protestant women were singled out for a strange beating. Skirts were lifted and the women paddled with a board whose protruding spikes formed a fleur-de-lys. Up to 49 women were victims of this scourging, and at least two died."8 In France at the end of World War II, there were about 10,000 extra-legal killings; a similar number is usually cited for Italy. Techniques of humiliation include the practice of tarring and feathering collaborators,4 forcing them to drink castor oil in public until it takes effect,5 and cutting the hair of women who engaged in "horizon- tal collaboration" with the enemy.6 In Argentina, where official transitional justice was very limited, it was supplemented by social ostracism of the 1,351 wrongdoers whose names had been leaked to the press from a member of the commission that investigated the "disappearances." One navy captain who was well known for his brutal acts "has suffered dozen of attacks in recent years by strangers on the street or people who say he tortured them and their relatives."7

The common feature of extra-legal justice, whether political or private, is that it tends to be motivated directly by the wish for revenge and other emotionally induced desires. Legal justice, too, may be rooted in similar motivations, but in a more complex way.

III. Emotion and Time in Transitional Justice

The downfall, defeat, or implosion of an authoritarian or totalitarian regime cannot fail to provoke strong emotions.8 Moreo- ver, I believe those emotions can have a strong impact on the procedures and outcomes of transitional justice. I shall adduce two kinds of evidence in favor of this proposition. In this section, I shall argue that the impact of time on transitional justice can be explained by some general features of the emotions. In the following section, I shall argue that the forms of punishments of wrongdoers that are chosen in transitional justice correspond closely to the spontaneous action tendencies of the emotions triggered by the different kinds of wrongdoing.

I shall focus on five features of the emotions: (i) Emotions have characteristic action tendencies. (ii) They tend to induce urgency, (iii) They tend to induce impatience. (iv) They tend to be transitory, with a short half-life.




(v) The agent is usually unable to anticipate that they will be transitory.

When an agent is in the grip of emotion, a "hot-cold empathy gap" may prevent him or her from realizing that the hot state will not last forever.9 Although I shall note exceptions to (iv) and (v), I believe they are less important than the main tendency.

Action Tendencies

Typical action tendencies of some key emotions are listed in Ta- ble 1:

Table 1.

EMOTION ACTION TENDENCY

Anger Cause the object of the emotion to suffer Indignation

Hatred Causes the object of hatred to cease to exist

Contempt Ostracism, avoidance

Shame "Sink through the floor"; run away; suicide

Guilt Confess; make repairs; hurt oneself

Envy Destroy the envied object or its possessor Fear Flight; fight Love To approach and touch the other; to help the

other; to please the other

Pity To console or alleviate the distress of the other

In Section IV below, I shall make some further differentiations, but these correlations will do for the time being. Although the action tendencies may be checked, often they are not. As we all know, emotions are capable of bypassing the machinery of prudential action.10 Among these "bypass mechanisms," the most important are perhaps the tendency of the emotions to induce urgency and impatience. I define impatience as a preference for early reward over later reward, that is, a positive rate of time dis- counting, and urgency as a preference for early action over later action. The distinction is illustrated in Table 2.




Table 2.

_tl t2 t3 t4

A 3 B 5

Case 1: Impatience A 3

B 4 Case 2:

Urgency A 3

B 6 Case 3:

Impatience and/or Urgency

In each case, the agent can take one and only one of two actions, A or B. In case 1, these options are available at the same time, in cases 2 and 3 at successive times. In case 2, the rewards (whose magnitude is indicated by the numbers) occur at the same later time, in cases 1 and 3 at different later times. Suppose that in an unemotional state, the agent chooses B in all cases, but that in an emotional state he chooses A. In case 1, the choice of A is due to emotionally induced impatience. In case 2, it is due to emotionally induced urgency. In case 3, it could be due to either or to the interaction of the two.

Urgency. In transitions to democracy, there is usually an urgent demand for immediate justice. Objectively, other matters such as economic reconstruction might suffer more from delay. Subjec- tively, punishment of the former oppressors and collaborators becomes the more urgent task. The extra-legal executions after WWII in France and Italy are evidence of this. The French practice of establishing summary martial courts to prevent people from taking justice into their own hands is another.11 Maurice Rolland, the official in charge of the early stages of transitional justice in France, asserted that "the government should establish justice before railroads."12 The widespread practice in all German- occupied countries of cutting the hair of women who had had




relations with Germans is even more telling,13 because they presented no possible risk that could justify immediate action on prudential grounds. In the first period after Liberation, there was in several countries increasing popular frustration with the slow- ness of legal prosecutions against collaborators.

The Yokohama war trials offer another example of the impact of urgency. The trial of General Yamashita notoriously ignored due process and mens rea requirements in favor of strict liability.14 In his dissenting Supreme Court opinion, Justice Frank Murphy observed that:

No military necessity or other emergency demanded the suspen- sion of the safeguards of due process. Yet [Yamashita] was rushed to trial under an improper charge, given insufficient time to pre- pare an adequate defense, deprived of the benefits of some of the most elementary rules of evidence and summarily sentenced to be hanged. In all this needless and unseemly haste there was no serious attempt to charge or prove that he committed a recognized violation of the laws of war.15

"Needless haste" can indeed be the effect of urgency, as I have defined it. Even where there is nothing to be lost and something to be gained by waiting, the psychic momentum of the emotion may prove too strong.

Impatience. As I noted, urgency and impatience may go together. In practice it may be difficult to tell them apart. In transitional justice, it may be hard to distinguish the urgency-induced desire for an early trial from the impatience-induced desire for a speedy trial. We might also expect emotionally induced impatience to make victims more willing to accept lump-sum settle- ments up front rather than a pension paid out over a lifetime. I do not know of any evidence, however, that bears on this hypothesis.

Short half-life. In transitional justice, this feature of the emotions shows up in two ways. The desire for retribution is blunted if there is a long time interval between the wrongdoings and the transition or if there is a long delay between the transition and the trials. These two effects may, of course, be compounded, but for analytical convenience, I shall treat them separately.

Consider first the effect of the time interval from wrongdoings to transition. In the first French Restoration, even the regicides who had voted for the execution of Louis XVI were exempt from prosecution. In the second Restoration, those among the regi-




cides who had joined Napoleon during the Hundred Days were exiled. In some of the German-occupied countries during WWII, the worst crimes were committed shortly before Liberation. In Italy, Denmark, and France, new and more oppressive occupa- tional regimes were created after 1942-1943. In 1944-1945, the Germans often engaged in scorched-earth tactics as they re- treated. In any case, no occupation lasted more than five years. By contrast, when the East European Communist regimes fell in 1989-1990, they had been in existence for fifty years, and the worst atrocities were in a relatively remote past: 10 years in Po- land, 20 in Czechoslovakia, 30-35 in Bulgaria, Hungary, and the GDR. There was not, therefore, the same urgent demand for retribution. The Spanish transition of 1978 also fits this pattern. One of the German negotiators in the 1999 reparation settle- ment said, "I cannot become very emotional about insurance claims that are sixty years old."16

This picture needs some nuances, since memory and emotion do not always decay with time. Although Louis XVIII was able to contain the demands of the émigrés for revenge in 1814, they did feel extremely strongly about what had happened to them 25 years earlier. A common saying about them was that "ils n 'ont rien appris ni rien oublié" (they have learned nothing and forgotten nothing) . Many of them wanted simply to restore the ancien ré- gime, including feudal dues and the tithe. Others wanted to get their properties back and not merely a monetary compensation. Still others wanted those who had purchased their properties cheaply to fund the indemnification or perhaps even be punished for their acts. At the Court, the émigrés behaved with unbe- lievable arrogance, inducing, for instance, Maréchal Ney to join Napoleon during the Hundred Days because of the contempt they displayed for his wife. It seems reasonable to assume that their memory had been kept artificially alive by their artificial existence in exile, during which they had little to do except think and talk about how they had been mistreated and hope against hope for affairs to take a better turn.

Another instance of lingering memory may be cited from the Liberation of Italy. In one of the first trials after the Law of July 27, 1944 that created the framework for transitional justice, a court in Grosseto condemned 11 fascists to prison for two or three years for their public humiliation of four antifascists (by




forcing them to drink castor oil) more than 20 years earlier.17 In a society that accords great importance to honor, such humiliation would be resented deeply and remembered strongly. (Strictly speaking, of course, the sentence was a legal action and not a form of personal revenge, but the evidence indicates that in such cases the courts largely acted to preempt and prevent more drastic acts of private reckoning.) More generally, in socie- ties with strong codes of honor, emotions of revenge seem to form an exception to the rule of a short half-life. Revenge can go on for years and decades until each and every offender has been killed,18 because the social norm that an offended person must take revenge makes it impossible for the emotion simply to fade away.

We may gain further insight into the role of memory in transitional justice by considering the process of reparation. It is an extraordinary fact that in many parts of France, the opprobrium attached to the biens nationaux that were confiscated during the French Revolution and sold off to private individuals persisted into the 20th century. Georges Lefebvre reports that "a little before the war [1914-1918], in Fromelles, a peasant pointed out to me the heirs of purchasers [of biens nationaux] as possessors of stolen goods, which even today he would not buy."19 In 1923, Emile Gabory could write about the Vendée that "the question of the nationally sold properties still prevents cordial relations among certain families." He goes on to explain the persistence of the memory:

Generations forget more quickly spilled blood than stolen goods. By their continued presence under the eyes of those who had been despoiled of them, the fortunes provided by the national estates [les fortunes domaniales] maintain an eternal resentment in the souls. If the nobility, over the last hundred years, had become richer, it would have been able to forget. That is not the case .... Because of their bias against commerce and industry, the nobles have been slow to understand modern obligations.20

On the one hand, the daily reminder of injustice, as distinct from the abstract knowledge of past wrongs, prevents the normal decay of memory and of emotion. On the other hand, those who fail to improve their situation because they are stuck in the past are, as a result, constantly reminded of what they have lost.

The retributive emotions may also decay if there is a long delay between the transition and the trials. In trials in German-occu-




pied countries after WWII, sentencing was almost invariably more severe in the initial stages than after two or three years. A dramatic example may be taken from the trials of collaborators in the French department of Ariège after August 1944:21

Table 3.

COURT PERIOD # ACCUSED # EXECUTIONS

People's Court August 19-31 55

Military tribunal September 2-4 8 8

Special military September 5-6 8 7 tribunal

Martial court September 13-14 2 2 Permanent military September 9- 13 4

tribunal October 25

Regular court November and later 172 3

Although the pattern is clear, it cannot be taken as conclusive evidence for decay of the retributive emotions. It could also be due to selection bias, if the most serious and obvious cases were tried first. In the only study known to me that tries to eliminate this explanation, it was found that in Belgium the very same crime, for example, serving in the Waffen SS or being a member of a paramilitary Nazi organization, was judged much more severely in the nine months following the Liberation than at later dates.22

Other explanations are also possible, however. Aristotle observed that

men become calm when they have spent their anger on someone else. This happened in the case of Ergophilus: though the people were more irritated against him than against Callisthenes, they acquitted him because they had condemned Callisthenes to death the day before.23

Seneca notes that "often he who has committed the smaller sin receives the greater punishment, because he was subjected to anger when it was fresh. And anger is altogether unbalanced; it now rushes farther than it should, now halts sooner than it ought."24 We find many examples in transitional justice. In the second French Restoration, the King's government wanted to punish a small number of those who had collaborated with Napoleon dur-




ing the Hundred Days, whereas the parliament was much more vindictive. When Napoleon's foremost general had been executed on December 7, 1815, the king's minister thought the mo- ment propitious to introduce a moderate bill: "He may have had in mind the animal tamers who go into the cage only when the ferocious animals have just had a meal."25 Commenting on the 1945 execution of a member of the extreme-right Hungarian government of Ferenc Szálasi, László Karsai writes,

There must have been two main reasons behind the execution of Pálffy: his trial was among the first to be held and his relationship with Szálasi was ideologically closer than that of Szakváry or Hel- lebronth. One might add that had he not descended from a great historic family and had he been tried in the second half of 1946, after the people's judges' thirst for blood had been quenched, he may well have received only a life sentence.26

This explanation is consistent with the fact that the demand for retribution in Chile and Argentina shows few signs of dying out. Because no trials (Chile) or few trials (Argentina) took place in the immediate aftermath of transition, there is a pent-up popular demand that never has been satisfied.

A third explanation relies on the common observation that war situations tend to induce a general devaluation of human life, which makes the death penalty seem less extreme than under normal circumstances.27 A telling illustration is provided by the following episode. In August 1945, 5,000 German prisoners of war participated in mine-sweeping operations in northern Norway. 184 of them were killed during the operations. Al- though this practice was almost certainly a violation of the Ge- neva Convention, nobody paid much attention to it at the time. This demonstrates how the priorities and evaluations of retributive justice change with the passage of time. Although I believe the decay of retributive emotions is the most plausible explanation of these phenomena, each of the others may also have some explanatory power.

Hot-cold empathy gap. Even though emotions tend to decay with time, we usually do not anticipate that they will. When we are in the grip of a strong emotion, we tend to assume that it will last forever. If we could predict that it won't, we might be induced to take immediate action. Although strategic preemption in the heat of passion is rare, it does occur. In Belgium, on the basis of the experience from World War I, "it was believed that after a




while, the popular willingness to impose severe sentences on the collaborators would give place to indifference."28 Hence some Belgians wanted the trials to proceed as quickly as possible, before passion was replaced by reason or interest. In France, many felt that the purges had to be carried out immediately because "it was necessary to act before the voices of timidity reas- serted themselves."29 In a related argument, President Raul Alfonsin of Argentina decided in 1983 that "[t]he trials should be limited to a finite period during which public enthusiasm for such a program remained high."30 In most cases, however, I believe the demand for instant action is simply due to the urgency of emotion rather than to anticipation of its decay.

IV. The Retributive Emotions

Let me now turn to some specific retributive emotions which shape the legal expressions of transitional justice. The argument is that specific beliefs trigger specific emotions which have specific action tendencies which correspond closely to specific forms of legal punishment. Although I cannot prove that the legal sanctions de- rive from these specific emotions, their close parallel to the action tendencies is highly suggestive.

I shall distinguish among five retributive emotions: ■ Anger is the emotion that A feels towards B because he believes

that B has harmed him for no good reason. The action tendency of anger is to make B suffer.

■ Cartesian indignation is the emotion that A feels towards B because he believes that B has harmed C for no good reason.31 If A loves C, he will feel anger rather than indignation, that is, a "second-party" rather than a "third-party" emotion.32 The action tendency of Cartesian indignation is to make B suffer. Experi- mental evidence indicates, however, that this third-party emotion is weaker than the second-party emotion of anger.3

■ Hatred is the emotion that A feels towards B if he believes that B has an evil character. The action tendency of hatred is to cause B to cease to exist or otherwise be rendered harmless, for instance by removal or internment.

■ Contempt is the emotion that A feels towards B if he believes that B has a weak or inferior character. The action tendency of contempt is avoidance, or ostracism.

■ Aristotelian indignation is the emotion that A feels towards B if he believes that B enjoys an undeserved fortune.34 The action tendency of Aristotelian indignation is to confiscate that fortune.




Whereas anger and Cartesian indignation are triggered by A's belief that B has done a bad action, hatred and contempt are triggered by the belief that B has a bad character. The antecedent of hatred is the belief that A's character is evil; that of contempt, that it is inferior or base. Followers of Hitler thought Jews evil but Slavs inferior.35 The distinction between action and character may seem problematic, at least if one believes that a claim that someone has a bad character can be supported only by pointing to his bad actions.36 Yet, in some cases, such as sadistic torture, we tend to think that a single action provides sufficient evidence of an evil character. The same problem arises for contempt and the correlative feeling of shame. The paradox of shame is that it "involves taking a single unworthy action or characteristic to be the whole of a person's identity."37 As for the distinction between hatred and contempt, it can perhaps be exemplified by the different emotions we feel towards someone who positively wants the destruction of other human beings and towards someone who simply doesn't care whether they are destroyed or not.38

To summarize, we react to the chronically bad with hatred, to the chronically weak with contempt, to the occasionally and intel- ligibly weak (about whom we might think, "There but for the grace of God go I"), with anger or Cartesian indignation, and to the undeservedly fortunate with Aristotelian indignation. We feel hatred for torturers and denunciators. We feel contempt for the opportunists who would enter the Nazi or Communist party to get jobs they could not otherwise obtain. We feel anger towards the South African lawyers who failed to speak out against apartheid (the vast majority) or towards the Norwegian sheriffs who joined the National Socialist party (again, a vast majority) because they would lose their job if they didn't. We feel Aristote- lian indignation towards the beneficiaries of wrongdoing such as economic collaborators in German-occupied countries, the white liberal elite in South Africa under apartheid, or Swiss banks that profited from the bank accounts of Jews who did not survive the Holocaust. After the French restorations, many felt the same way towards those who had purchased émigré properties at artificially low prices after they had been confiscated by the revolutionary authorities.

In transitional justice, these five emotions map into distinct legal and administrative reactions. Third-party emotions typically




generate fewer and weaker measures than second-party emotions. "Even liberal states are more likely to seek justice for war crimes committed against their own citizens, not against innocent foreigners."39 Towards the end of World War II, the harsh- ness of anti-Nazi measures demanded by Roosevelt's various advisers depended on whether they saw the Holocaust as a third- party or a second-party crime. For Henry Morgenthau and Ber- nard Baruch, both Jews, it was a second-party crime.40 Both demanded radical punitive action. Felix Frankfurter, also a Jew, did not. He agreed with Stimson that the Nazi leaders must be given "the substance of a fair trial," and added that "most of these Nazi crimes have not been directed at the American government or at the American army but at the people and armies of our allies."41 In him, the crimes triggered third-party emotions. Among non- Jewish Americans, second-party emotions seem to have been triggered by crimes against American soldiers. Eisenhower, for instance, "wanted to reserve special treatment for the 12th SS Panzer division, which had in June 1944 killed 64 Allied prisoners of war."42 Although the SS "had carried out countless worse atrocities against Soviet prisoners of war . . ., now the victims were Americans."43

Aristotle singled out "sycophants," i.e. professional informers, as especially deserving of hatred rather than anger. In German- occupied countries after 1945, denunciators, together with torturers, were in fact especially likely to receive the death penalty, which according to Aristotle is what hatred desires for its object. "In Paris, of the ninety-five persons executed after sentencing, . . . fifty had been torturers . . ., thirty had been informers."44 Comparable proportions apply for the 46 executed death sentences in Denmark. One informer had his petition for clem- ency turned down on the grounds that "we are dealing with a person who is not merely without value for society, but of directly negative value."45 The use of the death penalty against the major Nazi leaders and local Quislings may have been motivated by the belief that these men were intrinsically evil, although deterrence may also have been a motive. In Germany, seven Auschwitz doc- tors who had conducted medical experiments on Jews were executed.

The legal parallel to contempt-motivated ostracism is the punishment of national degradation. This sanction includes exten-




sive loss not only of political rights, but of the civil rights that are a condition for leading a normal life. In the French decrees of 1944, "National indignity was called not a crime, but a 'state' into which one entered by the performance of listed acts."46 In right- wing literature on transitional justice in France, the legislation against national indignity is compared to the Vichy measures against Jews and freemasons.47 In both cases, it is argued, people were punished for what they were rather than for anything they had done. The argument is specious because national indignity was the result of performing "listed acts' rather than merely be- longing to an abstract category. Yet, as I noted, the paradox is that although one enters the "state" by performing certain "acts," one is punished for being in that state and not for the acts. If we accept the Kantian view that retribution is a form of recognition of the offender as a moral agent, non-prosecution may also be an expression of contempt. It has been suggested, in fact, that this may account for the low level of prosecution of leaders and agents of the former GDR.48

The legal expression of Aristotelian indignation is clearly the confiscation and, if appropriate, the restitution of the undeserved gains. If we follow Aristotle, these gains are not "ill-gotten" in the sense of deriving from the agent's wrongdoings, for in that case anger or Cartesian indignation would be the appropriate reactions. Undeserved gains are simply windfall gains derived from somebody else's wrongdoings. The story of the Swiss banks illus- trates both kind of gains. Anger or Cartesian indignation are appropriate reactions to their profits from acting as Hitler's foreign exchange dealer, whereas Aristotelian indignation is the normal reaction to their gains from dormant accounts of Holocaust victims. (Anger may, however, be an appropriate reaction to their evasive behavior when the latter gains were brought up as an is- sue.) Pure, innocent windfall gains may be rare, however. Unlike the Swiss banks who profited from Hitler's gold, women in Ger- man-occupied countries who benefited financially from intimate relations with the occupiers did not create or increase the wealth in which they shared, yet their benefits were hardly a matter of chance. In such cases, Aristotelian indignation blends with or is overshadowed by contempt.

Let me conclude with some brief comments on the role of emotions in the behavior and attitudes of non-perpetrators -




neutrals and beneficiaries. After the transition, those who remained neutral may be targeted for their passivity and be at the receiving end of contemptuous reactions. More importantly, the guilt they feel for having done nothing may strengthen their demand for retribution, as if their post-transition aggression towards the wrongdoers could magically undo their pre-transition passivity. The tendency for the neutrals, those in the "gray zone" between collaboration and resistance, to be especially vindictive seems to be a general phenomenon.49 Carlos Nino cites dis- gusted reactions to the hypocrisy "when those who were silent in the past suddenly become vociferous advocates of retroactive justice."50 In Belgium, the draconian measures imposed by Antoine Delfosse, minister of justice in the exile government, "may have their origin in a need to stifle doubts created by his behavior during the first months of the occupation."51 In Holland in 1944, "many of the Dutch rescuers [of Jews] were looking for an 'alibi' with which they could prove their anti-German stance, once the war was over."52 In Italy after 1944, suspect judges might lean over backwards to prove their patriotism.53 In post-war France, a defense lawyer explained the severity of the first sentences by

the fact that many jurors were latecomers to the resistance and were eager to demonstrate a zealousness which they had not shown earlier. Later, when the deported came back from Ger- many, one had much more thoughtful jurors who . . . did not feel the need to prove themselves.54

The "résistants de septembre, "55 who suddenly emerged from their

passivity after the liberation of the territory in August 1944, were often more zealous in the harassment of women who had had relations with the Germans.56 Commenting on the difference in outlook that separated de Gaulle from the Resistance, A.J. Liebling wrote:

Every Frenchman feels in some degree guilty for the debacle of 1940 - if only because he let himself be bamboozled into a sense of security before it happened. But the traitors personify the guilt of all, which makes the honest men all the more bitter against them. In punishing the traitors, the French were punishing part of themselves. Only he who feels himself without guilt is reluctant to cast the first stone; he lacks the requisite imagination. General de Gaulle, the most self-righteous of Frenchmen, was one of the least vindictive against the erring brothers.57




In some of these cases, guilt of neutrals is transmuted into aggression towards the wrongdoers. In other cases, guilt of beneficiaries may turn into aggression towards the victims. Commenting on the psychology of the purchasers of confiscated émigré property after the original owners came back in 1814-15, de la Gorce writes, "There are some forms of remorse which become twisted and turn into hatred. The history of the Restora- tion can be summarized in the famous saying: 'Whoever has offended cannot forgive.'"58

V. Conclusion: Transmutation of Emotion in Transitional Justice

In transitional justice, it can be difficult to distinguish among three attitudes towards wrongdoers: the emotionally based desire for revenge, the desire for substantive justice, and the desire to procedural justice. As noted earlier, the fact that the demand for justice tends to decay with time suggests that it has a strong emotional underpinning. In addition, there is an internal tension within the desire for justice itself. In democracies that emerge from lawless regimes, whether authoritarian or totalitarian, the new leaders often want to show their adherence to the rule of law. The post-1945 trials in Western Europe were shaped by this consideration. In Norway, the use of summary trials was dis- missed as an expression of an unacceptable Nazi mentality. In Belgium, internment practices were severely criticized for resembling the way things were done "on the other side of the Rhine." In France, retroactive legislation was condemned as a Vichy practice. Anonymous denunciations - another Vichy custom - were not accepted.

The desire for legality often goes together with a strong desire for a large fraction of the collaborators to be convicted. As Peter Novick remarks about France, "side by side with this passionate longing [for retribution] was the attachment of résistants to those principles of justice and equity which distinguished them from the rulers of Nazi Germany and Vichy France."59 In post-1945 Hungary, the Minister of Justice insisted "both on the need to observe strict legal procedures and on the need to exercise revolutionary political justice."60 In many cases, however, there is a conflict between the desire for procedural justice and the desire for substantive justice; that is, between the desire to demarcate




oneself from the earlier regime and the desire to punish the regime as severely as it deserves. By acting on the second desire, one may thwart the first.

New democracies can resolve this trilemma in one of three ways. First, one can insist on respect for basic legal principles such as a ban on retroactive legislation or an extension of the statute of limitations. This has, for instance, consistently been the approach of the Hungarian Constitutional Court after 1989. For- mer East German dissidents imputed the same strategy to the German Courts after 1990. In a famous phrase by Bärbel Bohley, "We expected justice, but we got the Rechtsstaat instead." Second, one can frankly and openly accept the need to violate these principles in an unprecedented situation. After 1945, Denmark and Holland adopted explicit retroactive legislation, a procedure that was probably facilitated by the fact that neither country has a ban on retroactivity in the constitution. The same practice was observed in Hungary. Thirdly, and this is the most common procedure, one can use subterfuge to try and have it both ways. In 1948, a Belgian commentator wrote,

The Dutch system [of specifically permitting retroactivity] is more sincere than ours. The Belgian legislator pretended to adhere to the principle of non-retroactivity in criminal law. In reality [the Penal Code] . . . was made increasingly severe by so-called inter- pretative laws.61

In the same year, a Dutch law professor criticized the French who - in order to avoid retroactive penalties - called the often severe sanctions of the new "national indignity" crime "losses of rights" instead of penalties. "This seems to me a mere playing with words; a confiscation of one's entire property, or even a loss of certain rights, is as much a ... [penalty] as say a fine or the deprivation of liberty."62

In his discussion of the French magistrates after the Liberation, Alain Bancaud confirms the impression of "a certain hypocrisy" in the attempt to impose retroactivity without having the air of doing so.63 Similar tendencies were observed in Italy and Norway.

Similarly, the trials of the border guards in the former GDR arguably rested on legal subterfuge. To comply with the clause in the unification treaty that prosecution could only target acts that were crimes under East German as well as West German law, the Federal Supreme Court of Germany reconstructed an "ideal" law




of the GDR from supra-legal principles of natural law. Comment- ing on the decision, Peter Quint writes that

For all their earnestness and complexity, opinions of this sort seem to be lacking in candor. The court creates an ideal law of the GDR, through the use of techniques and principles resembling those current in the Federal Republic, solely for the purpose of saying that this hypothetical construct was "really" the law of the GDR and therefore its application today is not retroactive .... It would seem much more direct and honest to say: The law of the GDR as it actually existed was unacceptable and therefore we are applying a new law to these cases. Perhaps under prevailing interpretations of the Unification Treaty . . . that acknowledgment could mean the end of these cases, but these issues nonetheless deserve a more general consideration.64

Transitional justice is haunted by hypocrisy and by the transmutation of base motives into nobler ones. In a democracy based on the rule of law, legal justice must be kept strictly separate from private justice and political justice. In fact, apart from infor- mal social ostracism and impeachment of high officials, there is no room in a constitutional democracy for these two forms of extra-legal justice. Yet, as I have argued, extra-legal or pre-legal motives may underlie attempts to come to terms with the crimes of the past through the criminal justice system.

NOTES

1. H. Houssaye, 1815: La seconde abdication - la terreur blanche (Paris: Perrin, 1906) 494. Soviet troops in Germany after 1945 displayed the same phenomenon on a large scale (A. Beevor, The Fall of Berlin [New York: Viking, 2002]).

2. N. Kritz, ed., Transitional Justice, 3 vols. (Washington, D.C.: United States Institute of Peace, 1995).

3. D. Resnick, The White Terror and the Political Reaction after Waterloo (Cam- bridge: Harvard UP, 1966) 52.

4. This was a standard treatment of loyalists during and to some extent after the American War of Independence (C. van Tyne, The Loyalists in the Ameri- can Revolution [Safety Harbor, FL: Simon, 2001] 61, 241, 295). It also oc- curred occasionally in the Liberation of France in 1944.

5. H. Woller, Die Abrechnung mit dem Faschismus in Italien 1943 bis 1948 (München: R. Oldenbourg Verlag, 1996) 281.

6. This is the topic of the path-breaking and myth-breaking work of F. Virgili, La France virile (Paris: Payot, 2000).

7. New York Times, 12 August 1997. 8. For a vivid description, see H. Amouroux, La grande histoire des Français après

l'Occupation (Paris: Robert Laffont, 1999) Ch. 1.




9. G. Loewenstein, "Out of Control: Visceral Influences on Behavior," Organi- zational Behavior and Human Decision Processes 65 (1996): 272-92. The con- verse phenomenon is the "cold-hot empathy gap" that prevents a person from fully anticipating the impact of emotion. To illustrate these two gaps, consider again the six Frenchmen who killed themselves in June 1997. Had they been able to predict just how bad the shame would feel, they probably would not have become consumers. Had they been able to predict that the shame would not last forever, they probably would not have killed themselves.

10. I deliberately write "prudential" rather than "rational." While impatience makes us behave imprudently, it does not induce irrationality. Urgency, by contrast, does make us behave irrationally and a fortiori imprudently.

11. P. Novick, The Resistance Versus Vichy (London: Chatto and Windus, 1968) 146.

12. H. Lottman, L'épuration (Paris: Fayard, 1986) 217; italics added. 13. In France, the only country for which the phenomenon has been systemati-

cally studied, the number may be around 20,000 (Virgili 74-78) . For a survey of the practice in the other countries, see Virgili 271-78.

14. D. Cohen, "Beyond Nuremberg: Individual Responsibility for War Crimes, Human Rights in Political Transitions, ed. C. Hesse and R. Post (New York: Zenith, 1999) 53-92.

15. Cited after R. Taylor, A Trial of Generals (South Bend: Icarus, 1981) 163. 16. S. Eizenstat, Imperfect Justice (New York: Public Affairs, 2003) 340. 17. Woller 183. 18. J. Elster, Alchemies of the Mind (Cambridge: Cambridge UP, 1999) 229. 19. G. Lefebvre, Les paysans du Nord pendant la Révolution Française (Pans: Ar-

mand Colin, 1924) 468n2. 20. A. Gabory, Les Guerres de Vendée (Paris: Robert Laffont, 1989) 1063. 21. Amouroux 80-81. 22. L. Huyse and S. Dhondt, La répression des collaborations (Bruxelles: CRISP,

1993) 232. 23. Rhetoric 1380b 11-13. See also N. Frijda, "The Lex Talionis: On Vengeance,"

Emotions: Essays on Emotion Theory, ed. S. M. Goozen, N.E. van de Poll, and J. A. Sergeant (Hillsdale: Lawrence Erlbaum, 1994) 263-90.

24. On Anger I.xvii. Note that Seneca identifies both the urgency of the emotions and their tendency to be extinguished quickly.

25. H. Houssaye 592. See also A. Nettement, Histoire de la Restoration, vol. 3 (Paris: Lecoffre, 1860) 425-26.

26. L. Karsai, "The People's Courts and Revolutionary Justice in Hungary, 1945- 46," The Politics of Retribution in Europe, ed. I. Deák, J. Gross, and T. Judt (Princeton: Princeton UP, 2000) 233-51. See also Huyse and Dhondt on "the gods being thirsty" (119).

27. For a general discussion of this tendency, see Slovic (2000), Ch. 24. For examples from transitional justice, see Huyse and Dhondt 49, and J. Andenaes, Det Vanskelige Oppgji0ret (Oslo: Tanum Norli, 1980) 182.

28. Huyse and Dhondt 115. 29. Novick 39. 30. C. Nino, Radical Evil on Trial (New Haven: Yale UP, 1996) 67. 31. Descartes, "Passions of the Soul," The Philosophical Writings of Descartes, trans.

John Cottingham, Robert Stoothoff, and Dugald Murdoch, vol. 1 (Cam- bridge: Cambridge UP, 1985).

32. Descartes 201. 33. Ernst Fehr, personal communication with the author.




34. Rhetoric 1386b. 35. D. Goldhagen, Hitler's Willing Executioners (New York: Knopf, 1996) 469. 36. Anti-Semitism, when it rests on the premise that the evil of Jews is intrinsic,

"in their blood," does not need evidence of bad action; it also follows that Jews cannot be redeemed by good actions. In the case of a "Mischling" (half or quarter Jew), Hitler granted racial reclassification if it could be "proved [that] , without awareness of his ancestry, he had fought for the party unin- terruptedly and for many years prior to 1933" (R. Hilberg, The Destruction of the European Jews, vol. 1 [New York: Holmes and Meier, 1985] 79). The "Hindenburg exceptions" that protected Jews who had served in World War II did not outlast the person after whom they were named.

37. J. Lindsay-Hartz, J. de Rivera, and M.F. Mascólo, "Differentiating Guilt and Shame and Their Effects on Motivation," Self-Conscious Emotions, ed. J.P. Tangney and K.W. Fischer (New York: Guilford, 1995) 274-300, 297.

38. Thus Nino comes close to saying that one reason we believe Nazis were evil was their (non-reason-based) belief that lews were evil (141).

39. GJ. Bass, Stay the Hand of Vengeance (Cambridge: Harvard UP, 2000) 8. 40. For Morgenthau's reactions, see the extraordinary documents and conver-

sations collected in the Morgenthau Diary (Germany) (Washington, D.C.: U.S. Government Printing Office, 1967). For Baruch, see M. Beschloss, The Con- querors (New York: Simon and Schuster, 2002) 243, 246.

41. Beschloss 113-14; see also Bass 164-66. 42. Bass 154. 43. Bass 178. 44. Novick 163. 45. D. Tamm, Retsopg0ret efter Besœttelsen (Copenhagen: Jurist-og 0ko-

nomforbundets Forlag, 1984) 373. 46. Novick 146; see also P. Doublet, La collaboration (Paris: Librairie Générale

de Droit et de Jurisprudence, 1945) 28-29. 47. R. Aron, Histoire de VEpuration: Des prisons clandestines aux tribunaux

d'exception (Paris: Fayard, 1969) 111; Amouroux 207-08. 48. Claus Offe, personal communication with the author. 49. Although I cannot cite written sources for the post-1989 East European

transitions, many conversations with knowledgeable individuals in the re- gion suggest that the tendency operated there as well. In the Algerian transition to independence, the most vindictive in the killing of harkis (Algerians who had collaborated with the French) were those who had joined the National Liberation Front at a very late date, even after Indepen- dence (M. Hamoumou, Et ils sont devenus harkis [Paris: Fayard, 1993] 250; A. Méliani, Le drame des harkis [Paris: Perrin, 1993] 57). In an analogy to the "septembrists" who joined the French resistance after Liberation in August 1944, these were referred to as "marchians " because they joined the Front after the Evian agreements in March 1962.

50. Nino 39. 51. Huyse and Dhondt, La répression des collaborations 69. 52. R. Hilberg, Perpetrators, Victims, Bystanders (New York: Harper Collins, 1992)

211. 53. R.P. Domenico, Italian Fascists on Trial (Chapel Hill: U of North Carolina P,

1991) 179. 54. Lottman 272. 55. Referring to trance, Belgium, and the Netherlands, F. Lagrou, in I he Leg-

acy of Nazi Occupation (Cambridge: Cambridge UP, 2000), writes that "[t]he definition of what and who had been elements of the resistance, accommo-




dation or collaboration became one of the most vehemently debates political issues of the post-war years" (25). In France, the National Assembly adopted legislation in March 1950 saying that, to obtain the coveted carte du combattant, one had to prove active involvement in the resistance beginning at least 90 days before the Normandy landings; to benefit from the similar Belgian act, any activity before the landings was sufficient (Lagrou 45, 51).

56. Virgili 111-15, 208-09. 57. Cited after Novick 157n3; see also J. Lacouture, De Gaulle, vol. 2 (Paris:

Seuil, 1985) 140. 58. P. de la Gorce, Louis XVIII (Paris: Plon, 1926) 162-63. In his exhaustive

treatment of the subject, A. Gain, in La Restauration et les Biens des Émigrés, vol. 1 (Nancy: Société d'Impressions Typographiques, 1928), asserts that "it would be more correct to say that the purchaser, looked down upon and despised by the former owner, envied and ridiculed by his neighbor, re- treated into a defiant isolation vis-à-vis the regime and, until 1830, gladly posed as a victim" (348). These motivational nuances are hard to assess.

59. Novick 141. 60. I. Deák, "Political Justice in Austria and Hungary after World War II," Retri-

bution and Restitution in the Transition to Democracy, ed.J. Elster (forthcoming from Cambridge UP).

61. H. Mason, The Purge of the Dutch Quislings (The Hague: Martinus Nijhoff, 1952) 130.

62. Mason 130. 63. A. Bancaud, Une exception ordinaire: La magistrature en France 1930-1950

(Paris: Gallimard, 2002) 113-16. 64. P. Quint, The Imperfect Union (Princeton: Princeton UP, 1997) 203.



emotions and transitional justice

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