Justice is a crucial issue for the war victims. Both the stories in Nanjing Requiem and War Trash deal with post-war justice, jus post bellum i.e., “the practice after war ends” defined by Hugo Grotius (see May 1). After the abolishment of the state of exception, the figures of bare life can restore their human rights and political statuses, but it remains a question whether they can claim their justice afterward. Chapter Three aims to illuminate the justice issue for the victims after the war. In Nanjing
Requiem, after Imperial Japan is defeated, International Military Tribunal for the Far
East (Tokyo Trials) is established to convict war criminals, which can be seen as“transitional justice” for war victims. Defined by the United Nations, transitional justice
is the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, in order
to ensure accountability, serve justice and achieve reconciliation.
Transitional justice processes and mechanisms are a critical component of the United Nations framework for strengthening the rule of law (See United Nations).
In Larry May’s After War Ends: A Philosophical Perspective (2012), transitional justice concerns “the way to move from an authoritarian regime that did not respect the rights of the people to a democratic regime that does respect the rights,” and aims for “reconciliation with a violent past” (6). Larry May proposes that both just post
bellum and transitional justice appeal for “moderation” between previously
conflicting groups to achieve lasting peace (6). The state has to guarantee that the atrocities against humanity, such as holocaust, will never happen again. The
government has to reform its juridical system to prevent abusing of justice, and “to establish a just and lasting peace” (1).
Theoretically, transitional justice can rehabilitate the reputation of victims, and abusers should deserve juridical judgments. In War Crimes Tribunals and Transitional
Justice: The Tokyo Trial and the Nuremburg Legacy (2008), Madoka Futamura
proposes that the positive impacts of International Criminal Tribunal (ICT), such as Nuremberg Trials and Tokyo Trials, establish “a culture of law and order,” promote
“the transformation of post-conflict society,” and contribute to “international peace and security” (49). The tribunal is expected to be a “warning” to the leader of the country and to the group who may commit the war crime again (49). However, in
Nanjing Requiem, the justice enforced by laws faces its limitation and obstacles in
application. Because of insufficient evidence to prove their crimes, not all criminals can be convicted and punished. Moreover, like the humanitarian aids affiliated to national system, the juridical judgment is easily manipulated by political causes,because juridical systems are affiliated to the state system as well.
On some occasions, even the juridical judgement after the war does not provide justice; instead, it punishes the war victims because of political reasons. In War Trash, those repatriated Chinese soldiers are war victims. Without concerning their will, Chinese government drafts them to engage in the war. While imprisoned in the POW camps, more than one hundred soldiers sacrifice their lives to show loyalty to their nation, but all of them are treated as traitors after they return to China due to their captivity in the enemy’s camp.
The purpose of transitional justice provided by war trials can be explained by Walter Benjamin’s critique of “law-preserving violence,” a kind of long-lasting
“threatening violence” (285). Law-preserving violence is not designed to punish the violators of laws but “to establish a new law,” which can exercise violence “over life and death more than in any legal acts” (286). Although the criminal trials after the war really convict several primary war criminals, its effect of law-preserving violence is more profound and influential to the future era. For example, besides convicting some major war criminals, Tokyo Trials have established a new order for future peace and the international regulations of war violence exercised by the state power, but some suspects who should have taken the responsibility for war crimes were intentionally spared because of the legal system’s essential limitation and the American’s political concerns. One primary cause is that, in some occasions, “criminal trials do not instill respect for the rule of law, and actually increase the likelihood of violence” (May 110). Criminal trials often bias toward particular sides or participants. May indicates that trials criminalize “just the person who is in the dock, not those who may have aided the alleged perpetrator or those who could have prevented him from acting as he did” (111). This is the limitation and the challenge against the war trials which cannot
judge the suspects without sufficient proof. Therefore, not all transitional justice can be achieved by trials, so May proposes that “truth commission,” could be an
alternative and non-legal way “to promote healing within communities that have been ravaged by war or mass violence” (98).4 Truth commission is regarded as “a
reconciliation that will lead to the return of a just and lasting peace,” to promote the recognition of “the truth of what happened” for the war victims and communities since the recognition of truth can be regarded as “the process of healing” (98). As Te-hsing Shan comments on the significance of recording true history, “if crimes and trauma are not sufficiently recognized and addressed, there will be no possibility of putting the past to past, nor of moving into a more hopeful future” (26). Therefore, truth commission indicates that transitional justice should not be limited to juridical judgment, but can be any practice of commemoration, such as investigating
unrevealed history, establishing memorial museums, or composing memoirs.
As a way to attain transitional justice, truth commission requires various kinds of materials, such as evidence, documents, testimony of the witnesses to investigate and present the historical truth. However, how much truth can be revealed with these materials still remains questionable. Chapter Three intends to use Agamben’s “lacuna in testimony” to explain the limitation of truth commission as a way for transitional justice. Because testimony is provided by “the survivors” who had been involved in the incident, compared to other kinds of material evidence, testimony plays a more significant role in representing the truth.5 Agamben composes Remnants of Auschwitz (1999) as his investigation and commentary on the testimony of the survivors in
4 In Madoka Futamura’s research, the truth commission has been a popular forum which thrived during the transitional period of Latin America and South Africa, and provides “both victims and victimizer opportunities to tell their story and reveal the truth” (49).
5 Agamben explains the idea of the survivor: “a person who has lived through something, who has
Auschwitz, and proposes that “testimony contained at its core as essential lacuna; in other words, the survivors bore witness to something it’s impossible to bear witness to” (13). In Agamben’s explanation, the survivors in Auschwitz are not qualified enough to present complete historical truth with their testimony.
About the war trials, Agamben disagrees that the trial can prove the truth, stating that “the ultimate end of the juridical regulation is to produce judgement; but
judgement aims neither to punish nor to extol, neither to establish justice nor to prove the truth” (19). The ultimate goal of the law is “the production of a res judicata, in which the sentence becomes the substitute for the true and the just, being held as true despite its falsity and injustice” (18). In Agamben’s critique, it remains a question whether legal trials can prove the truth and claim transitional justice for war victims.
His statement implies the juridical “truth” leaves a discrepancy with the real truth.
Besides the juridical court, truth commission also promotes transitional justice through collecting the testimony of the survivors to present historical truth. Agamben points out the essential cause of testimony as “a lacuna,” which questions the “identity and reliability of the witness (Remnants 33). The same question challenges the
qualification of the survivors, who have been through the misery in the camp. Primo Levi, a survivor in Auschwitz whose testimony is cited by Agamben in Remnant, agrees that “there is another lacuna in every testimony” because “the complete witnesses,” “Muslims,” “the submerged,” who can provide testimony have “not returned to tell about it or have returned mute” (83-84). The complete witnesses had already “lost the ability to observe, to remember, to compare and express themselves,”
so the survivors “speak in their stand, by proxy” (84). Because the complete witnesses who had been through the severest misery lost their ability to provide testimony, the survivor, who had undergone the peripheral part, served as a proxy to speak for them.
The proxy of the survivor here is a legal role, and he/she can provide testimony in the court on behalf of these complete witnesses. However, when speaking about “the truth,” the qualification of the survivor’s role as a proxy remains questionable, suggesting that the truth commission pursued by the survivors’ testimony still cannot reconstruct truth.
Therefore, Agamben enhances his contemplation from the legal function to the ethical role of testimony, attempting to untangle the limitation of using testimony to pursue transitional justice. Agamben analyzes the impossibility of formulating “a complete subject of testimony:” “testimony takes place where the speechless one makes the speaking one and where the one who speaks bears the impossibility of speaking his own speech, such that the silent and the speaking…enter into a zone of indistinction” where “it is impossible to establish a position of the subject, to identify…the “I” and, along with it, the true witness” (Remnant 120). Emile Benveniste writes that “it is in the instance of discourse in which I designates the speaker that the speaker proclaims himself as the “subject,”” and “it is literally true that the basis of subjectivity is in the exercise of language” (226). Since “I” am speaking, a speaking subject “I” is formulated. As Agamben states, “to speak, to bear witness, is thus to enter into a vertiginous movement in which something sinks into the bottom, wholly desubjectified and silenced, and something subjectified speaks without truly having anything to say of its own,” and briefly concludes that “the subject of testimony is the one who bears witness to a desubjectification”
(120-21).When “I” am speaking for someone, the speaking subject “I” surrenders part of its subjectivity to speak for someone unable to speak. This is a process of
desubjectification, initiating an I-other relation, to be more precise, the ethics to the Other, to those Muselmanns losing their capability of speaking for themselves. Based
on Agamben’s perspective, it seems hard for, truth commission as a way of pursuing transitional justice through testimony, to reveal the truth, but it directs a new route of the ethics to the Other. In Nanjing Requiem and War Trash, the two narrators, Yu Yuan and Anling, are the survivors who can provide testimony on behalf of the war victims who cannot speak for themselves. Ha Jin designates Yu Yuan and Anling to elucidate his ethics of the Other. Furthermore, Ha Jin attempts to pursue transitional justice through truth commission not in the form of presenting historical truth but raising a signpost for the ethics of the Other.
As a novelist, Ha Jin commits himself to write War Trash and Nanjing Requiem not to present historical truth but to express a strong sense of concern for the Other through literature. Besides the two novel, Ha Jin, in The Writer as Migrant (2008), his essays of literary criticism, elaborates the social role and responsibility as a writer, the migrant author’s impediment of language usage and the identity issue of the diaspora.
Chapter Three uses Ha Jin’s philosophy about the writer’s social role and
responsibility in The Writer as Migrant to elaborate Ha Jin’s ethics and justice of the Other.
Agamben also proposes his idea of justice, but it is not appropriate to explain the justice in War Trash and Nanjing Requiem. Agamben develops his theory of justice from Benjamin’s Messianism, writing that “the Messiah’s arrival signifies the fulfillment and the complete consummation of the Law” (Homo 56). The Messiah is
“the figure through which religion confronts the problem of the Law, decisively reckoning with it” (Potentialities 163). The Messiah attains the salvation of life through the fulfillment and consummation of the Law, deconstructing the
indistinguishable relation of the Law and life. All the laws in the past are completely suspended to attend a complete liberation of the life, which finally restores the life’s
potentialities/impotentiality. The Law is no longer applicable but only remains a wreckage for study in the future. The justice is about what Messiah restores to the life, finally falling into the “potential not to act” (181). However, Ha Jin’s idea of justice is an active consideration and participation in acting and voicing for the miserable people. Seeing a discrepancy exists between the considerations of justice by Agamben and Ha Jin, Chapter Three centers on examination of Ha Jin’s justice revealed in