There seems to be a great desire for what some people have called "moral accounting" at the end of the 20th century. For example, the Canadian government has reached a settlement with aboriginal peoples in Canada; Japan has apologized for atrocities in World War II, particularly to Korea; and the fledgling democracies and post-conflict societies—South Africa, Guatemala, Argentina, and so on—are all wrestling with the concept of reconciliation. Even in the United States itself, this notion, particularly with regard to racial unity and healing, has been a big part of President Clinton's aspirations for his administration, and it also is going to be a big part of the candidacy of Bill Bradley, who has set reconciliation, racial unity, and healing among his priorities.1
Why is this trend occurring? I'm not sure, but here are three brief quotations to give you some sense of what's happening.
The Eizenstat Commission has just issued its report on the status of the "Nazi gold," which examines how gold was handled during World War II. In it Stuart Eizenstat writes: "By completing the unfinished business of the middle of this century . . . we can enter the new millennium having attempted a moral accounting of this lingering ledger of grief." This effort at moral accounting is meant to build bridges "between searing history and enduring memory; between brutality and humanity; between a bitter past and a better future."2
Rabbi Leon Klenicki, who works with the Anti-Defamation League here in New York, has written on this theme in a way that, while looking at the past, actually emphasizes the present and the future: "Reckoning means to look into the past with the purpose of understanding it, admitting past transgressions and projecting new meanings [on] to the present."3
Finally, in her wonderful book on this topic, Between Vengeance and Forgiveness, Martha Minow writes:
"Living after genocides, mass atrocity, or totalitarian terror makes remembering and forgetting not just about dealing with the past. The treatment of the past through remembering and forgetting crucially shapes the present and the future for individuals and societies."4
How should we sort through our options—remembering and forgetting, judging and forgiving, reconciling and avenging, grieving and educating? Each may be necessary, yet painfully inadequate.
This raises questions for us to ask, which I think are some of the most profound ethical questions of our time. What can we learn from our theological and philosophical traditions? What can we learn from our different national experiences? How can we best confront the legacies that shape our present and suggest our future? And how can we do this in ways that are constructive and forward-looking rather than divisive and corrosive to the social fabric? This panel addresses those concerns.
Reckoning with past wrongs is, indeed, an ethical challenge. It's a legal challenge; it's a policy challenge; it's a challenge of strategy and tactics as well. In the article that I wrote for Volume 13 of Ethics & International Affairs, I identify the range of tools that are available—not just trials versus truth commissions, but an array of interesting and important means—and I look at the kinds of capabilities that different societies have at different times, their limitations, legacies, and challenges. I set forth eight different morally urgent goals that I argue any society should take very seriously. These goals enable us to identify eight issues. Here I will give them briefly: truth; a public platform for victims; accountability and punishment; the rule of law; compensation to victims; institutional reform and long-term development; reconciliation; and public deliberation. I seek to sketch out some way of applying this framework to Yugoslavia and to Kosovo right now, because already the issues of reckoning with past wrongs are emerging as we try to minimize present evil.
First, with respect to truth, there is a strong obligation, it seems to me, to get as much truth, and the right kind of truth, while the conflict is going on. This is extraordinarily difficult. Some of my heroes in this field have been investigative reporters. What they did in Bosnia they have not yet been able to do in Kosovo, or are only beginning to do. I am thinking, for example, of Steven Erlanger in the New York Times, following in that great tradition of Roy Gutman and others who have revealed, sometimes at great personal risk, atrocities, or at least have begun to ferret out the evidence.
Truth, we know, is the first casualty in war. I am closely related to many Serbs both inside and outside Serbia, and I am bombarded daily with other perspectives than those in the newspapers-some of which, to be frank, seem to me to be perfectly crazy. And yet, they make me pause to wonder just where the truth does lie. It is very important to get the best kind of rigorous, impartial data collection through testimony—some of which will be exaggerated, some of which will not-and exhumations. This search for truth in the current situation has to go on both inside Kosovo— and here it has been difficult because of access—and Serbia proper, and outside, through fly-overs. One of the problems in the Bosnian situation, when we tried to address the issue of culpability and accountability, was that the State Department spent very little time and effort in analyzing and interpreting the great amount of data that came in from the flyovers from 1992 to 1995. That needs to be rectified now, and the data must be interpreted correctly.
Another goal that I argue for is accountability and punishment. Of course, the truth is important here for the issue of assigning who is responsible and who is accountable. Applying this goal to the Yugoslav situation immediately raises the question of Milosevic. Does Milosevic deserve to be named a war criminal at this point? The evidence has been accumulated. He has been indicted. What role might this play in bringing about a better future? Will it weaken him, or will it in fact strengthen him? Our best intelligence—and I don't mean just organized, central intelligence—needs to be brought to bear on that.
What would be the consequences of offering Milosevic immunity? Might this be a way of sweetening the pot as we try to get the best kind of settlement we can? And then, if he is given immunity, should others be given immunity as well? How broad should that net be? These are ethical issues as well as political and strategic issues.
The rule of law, another goal I have mentioned, means that we should be even-handed, looking not just at atrocities committed by the Serbs, but recognizing, without arguing for moral equivalence, that there have been severe human rights violations committed by Albanians and that the United States may be guilty of its own violations.
I would also look at institutional reform and long-term development. Recently I participated in a session at the United States Institute of Peace, in which the Agency for International Development, Mercy International, the Soros Foundation, and many other groups raised the question of what we do from here on with respect to economic reconstruction, repatriation, and reconciliation, recognizing that we are in the midst of an extremely bitter ethnic conflict where minority rights on both sides have not been recognized and where democracy, both within Kosovo and within Serbia proper, has been extremely minimal, fragile, and incomplete and needs to be bolstered.
Finally I would urge us to raise the level of public deliberation, to hear and participate in the give-and-take between the Serbs and the Albanians. I find this extremely difficult. When I receive an e-mail from one of my Serbian friends, it is difficult for me to open it. But we need to recognize that the ongoing public deliberation requires being open to the criticisms of the other and to the possibility that we may not have the whole truth ourselves.
I am going to confine myself to a few conceptual comments about retribution and restoration and try to relate them to current efforts to deal with human rights violations in so-called transitional societies—namely, those societies moving from previously authoritarian regimes to democratic ones. First, what do we mean by retribution and what do we mean by reconciliation? Simply put, retributive justice means offender accountability. It is offender-specific, backward-looking, and strictly punitive, in the sense that the punishment is aimed at the offender. Retributive justice is very important to the rule of law, which presupposes a system of retributive justice. The retributive system is very much part of the international legal human rights system that applies to South Africa, to Kosovo, and elsewhere.
Restorative justice, on the other hand, focuses on the future of the relations between the perpetrator and the victim. For example, the relationships that have been broken by the offense committed by the perpetrator can begin to be restored or repaired through reparations and compensation. Restorative justice is victim-specific and forward-looking, and its objective is to reduce the causes of hostility and estrangement by means of something like compensation or reparations.
Now, there are several forms of restorative justice, and these play different roles in some of the practical arrangements by truth and reconciliation commissions around the world. Restorative justice might simply be a modification of retributive justice, in which, for example, the perpetrator is asked to pay some kind of damages or some kind of restitution to the victim. But there is another form of restoration in which the whole range of things that retributive justice cares about are cut loose. In her article in Volume 13 of Ethics & International Affairs, Susan Dwyer talks about a reconciliation system that contrasts with retribution and that really does not address the question of wrongs at all. Rather, it sets about creating a future in which past evils will not take place again. This is what Crocker, in his article, calls a "thin" version of reconciliation.
But there is a thicker version of reconciliation, which is connected to the idea of forgiveness. What do forgiveness and reconciliation mean in regard to restorative justice? I think there are five features to the notion of forgiveness:
- Forgiveness involves a transaction between a forgiver and a forgivee.
- There is a common acknowledgment between the two parties regarding the wrongdoing and the penalty.
- There is contrition on the part of the forgivee.
- The forgiver annuls the fitting punishment. By the way, the Greek word for forgiveness means annulment or cancellation, so it is a cancellation both of the debt and of the due or fitting penalty.
- The forgivee has obligations. This is where the idea of a new kind of justice comes in. It is a restorative justice.
That is to say, the obligations of the forgivee are to go out and repair relations with other people. So there is a replication requirement. You have had your relationships restored; you are bound to restore relations with others in comparable situations.
Not all of the retributive features are missing in this version of reconciliation. There is concern with personal accountability, with individual responsibility. But the key thing about the forgiveness model is that it is a voluntary arrangement. It is not imposed by officials. Both parties agree to the wrongdoing and accept the consequences that follow from it. That feature distinguishes a model of forgiveness and reconciliation from one of retribution, which is decided by officials according to objective procedures and imposed, like it or not, upon the parties. The forgiveness model is not formal, is not objective, in that same sense.
What I have tried to do in my article in Ethics & International Affairs is to look at these features in regard to Bosnia-Herzegovina and to South Africa. In essence, you find various features of the forgiveness model working themselves out in the truth and reconciliation model: annulment of punishment, or amnesty, for example; hopes under some terms that there will be an expression of contrition; and hopes that there will be some expression of forgivee obligations whereby the perpetrators will undertake to do something beneficial for the victims. In other words, you find a spectrum, moving from retribution to an extreme form of forgiveness and reconciliation.
Both the reconciliation/forgiveness model and the retribution model are at work in the experiences of South Africa and Bosnia-Herzegovina. Retribution is there and certainly occupies an important place, but it is not somehow sufficient. The reconciliation/forgiveness model is intruding in a variety of ways and indicates some interesting things about how we think about justice and how we reckon with the past.
I am looking at some of these issues far more empirically. One of the things that strikes me particularly in Latin America, and elsewhere as well, is the relationship between international law principles and the choices the different countries have made. For many years, it seemed that there were two completely separate tracks: a discussion of the evolution of international law and its requirements that certain crimes be investigated, prosecuted, and punished; and the reality on the ground. Political concerns were always allowed to trump the requirements of international legal principles.
But in late 1998 in Europe, something unprecedented occurred. The concept of universal jurisdiction was put to the test in the case of perhaps the most symbolic of the former Latin American dictators, Augusto Pinochet. For once, at least for the time being, international law has been allowed to take precedence over political concerns.
The arrest of General Pinochet did not come out of nowhere. As the previous panelists have mentioned, there has been a great deal of development in international law in recent years, as reflected in the formation of the ad hoc tribunals for the former Yugoslavia and Rwanda, and most recently in the statute for the International Criminal Court that was signed in August 1998 in Rome. These international tribunals have taken international legal principles, set them down in black and white, and tried to put them into effect.
The decision to prosecute Pinochet in Spain grew out of an effort, first by nongovernmental human rights organizations—domestic ones in Chile, human rights groups in Spain, and international human rights groups—to pursue justice in both the Argentine and Chilean cases. This led to prosecutions, which Spanish law permitted, that began with a case about the disappearances in Argentina, originally of Spanish citizens and relatives, and proceeded with a case about Chile, again starting with the Spanish citizens and relatives. These cases have been under investigation since 1996. The judge in the Pinochet case could not have acted without an enormous amount of assistance in getting evidence and documentation about what went on.
In the original proceedings in Britain, one of the Law Lords was particularly concerned that the British courts could be seen to be disregarding the Chilean amnesty law and undermining the Chilean Supreme Court's right to determine the validity, interpretation, and application of that law. A more commonly raised concern is that the proceedings in Europe interfere with the Chilean state's discretion to manage its transition process.
The final decision in the Pinochet case did not address the amnesty issue directly because it dealt with crimes only after 1988, when the Torture Convention became effective in Britain. However, it seems clear that the reasoning applied in that case would allow a foreign court to go ahead with a prosecution in spite of an amnesty law in another country, if the court is looking to international law, which the Law Lords did.
Guatemala is another example where international legal principles have started to make a difference in how transitional justice is being approached. I won't describe the results yet, because Guatemala's peace process is in a very early stage, with peace accords dating from December 1996. But, unlike the other countries in Latin America, when Guatemala enacted amnesty as part of its peace accords, or what they called the National Reconciliation Law, it looked fairly carefully at the requirements of international law regarding what kinds of crimes could be amnestied and what kinds could not. The law specifically excepted genocide, disappearances, and torture, in a recognition that crimes against humanity are not subject to amnesty.
Then the truth commission in Guatemala, finding in its February 1999 report that the Guatemalan state had committed acts of genocide against specific Mayan communities in a particular time period, made specific reference to the Genocide Convention and the obligation of the Guatemalan government to bring those responsible to justice and to pursue those responsible for other cases that could not be amnestied under Guatemala's National Reconciliation Law.
The point is that these international legal principles, which not very long ago seemed to have nothing to do with the reality on the ground, are starting to have an enormous impact on the way these cases are being addressed. Whether or not General Pinochet is ever tried in Spain, certain principles have been established. And likewise in Guatemala, justice is in a very weak condition, but there has been a precedent established that the courts must look to international law in determining what can be amnestied.
Paul van Zyl
One of the great problems in transitional justice is that transitional justice scenarios do not readily lend themselves to resolution in courts of law. If you focus the resolution of conflicts in courts, you have debates between absolutists, who say "you must punish, come what may," and relativists, who say that consolidating democracy and preventing bloodshed are more important. I think this debate misses a crucial point. It's not about whether you should have to punish or whether a more pressing social imperative trumps this obligation; it's that you can't punish, even if you have sufficient power to do so. My argument is that in almost all transitional justice scenarios, you cannot punish more than a tiny fraction of those people responsible for gross violations of human rights. That is a big claim, so let me try to justify it.
First, many transitional justice systems inherit criminal justice systems that are practically inoperative—the classic case being Rwanda, where 80 percent of the judges were killed, on the assumption that dead judges don't prosecute. You find in many of these societies highly damaged criminal justice systems.
Second, criminal justice systems that have functioned under authoritarian or autocratic regimes for long periods of time develop behavioral modes that don't lend themselves to prosecuting under rights-based dispensations. Take South Africa. Under the apartheid era, policemen used to torture people until they confessed, and prosecutors could rely on partisan and corrupt judges to render judgments when they didn't have to present particularly compelling cases. When you move to a new constitutional order, you have to retrain those people who function in the criminal justice systems to get them to develop the modes of behavior that are acceptable under rights-based dispensations. Retraining can take many, many years, even an entire generation. And sometimes criminal justice systems are staffed by people who are loyal to the old order. In both Latin America and South Africa, there were judges, policemen, and military officials who were loyal to the older order and who were very disinclined to bring cases and engage in robust prosecutions against people with whom they considered themselves politically aligned.
Third, transitions often result in a dramatic increase in crime—look at Russia and South Africa today. And successive regimes often have to make agonizing choices: Do they prioritize the addressing of past crime or current crime? If they allocate a disproportionate amount of resources to addressing past crimes, they may lose the very pressing political battle against current crime.
Fourth, human rights crimes are very often committed by skilled operatives, who are trained in covert operations. They are experts in concealing evidence, and their crimes are the kind that are even more difficult to prosecute than normal crimes.
Fifth, it is difficult to prosecute people who are responsible for formulating the policies. While it's relatively easy to get the trigger-puller and the person who gave the orders, it's very difficult to prosecute those people who created the political framework that made human rights abuses possible. The South Africa State Security Council, the highest decision-making body, formulated arguments cloaked in ambiguity so that they could plausibly deny that they were authorizing human rights abuses. But it was quite clear to the generals who received the orders and passed them down what exactly should be done, and that was the assassination of political opponents. But the people whom you should be prosecuting and the people who are in many senses the most morally culpable, the politicians, if they're smart, will cloak their authorization in such a way that it's easy to deny after the fact if they're ever caught.
Sixth, transitional societies face tremendous economic challenges, and they have to make agonizing decisions about how to appropriately allocate resources. Do they build more schools, more jails, more hospitals, or more courts? Do they hire more teachers, more doctors, more prosecutors, or more policemen?
Seventh, trials are expensive. And very often, people who are put on trial after transitions are people who were former state employees and thus can claim they were acting in the course and scope of their employment. The new democratic dispensation is then faced with the absurd prospect of having to foot their legal bills and their large and costly teams of defense lawyers. You also often need to establish witness protection programs if you are to prosecute people who still wield considerable social power.
Eighth, trials take time. The two major hit squad trials in South Africa—only one of which secured conviction—took 18 months and required the services of more than 100 witnesses. So these kinds of trials are both time- and resource-intensive, and if you multiply that across the thousands of trials you would have to undertake, they soon become impractical.
Ninth, trials are even more expensive and more time-consuming when the people you target are powerful. General Pinochet's trial is projected to cost $40 million. In the trial of P. W. Botha, the former president of South Africa, which I was involved in, it took nine months and six court appearances to secure a minor conviction on defying a subpoena issued by the Truth Commission. If you think of the crimes that P. W. Botha is almost certainly guilty of, that illustrates the point.
Tenth, international prosecutions confront many of the same problems that I have set out, but they are compounded by the tricky question of jurisdiction. The people over whom you most want to gain jurisdiction are often the people over whom you are least likely to get it.
What is the policy upshot of these ten points? Criminal justice systems are designed for societies in which the violation of the law is the exception and not the rule. When the violation of the law becomes the rule and not the exception, as it does in societies in which there are massive systematic violations of human rights, criminal justice systems simply do not cope, and you can only prosecute, at best, a very, very thin layer of the people responsible for human rights crimes. The policy implication is that we need to think beyond punishment. That's not to say that punishment is not important. But we need to start looking at other, more creative strategies designed to deal with the legacy of human rights abuse. I think there are five main things we have to do:
- get truth in relation to the victims;
- get truth in relation to the perpetrators;
- try to reform state institutions so that they are not capable of violating human rights again in the future;
- try to provide compensational reparation to victims; and
- seek to punish.
In South Africa, we sought to provide truth for the victims by giving them a platform from which to tell their stories. Not only was the truth of their experience acknowledged by a formal body appointed by President Mandela, but in some officially sanctioned way the truth of their suffering was also recognized. That was important not only at a political level, but also at a therapeutic level.
For perpetrators, the innovation of the South African process was to create an amnesty process predicated on full disclosure; you couldn't get amnesty unless you revealed in full the details of all the crimes for which amnesty was sought. This created a domino effect. Once some perpetrators had applied, an enormous number followed suit, and we obtained a large amount of truth about the identity of perpetrators that we wouldn't otherwise have obtained. This kind of public disclosure also shames perpetrators. Although they get off scot-free, with the criminal and civil liability extinguished, it does attach some degree of social sanction. They are shamed publicly.
We also formulated a reparation policy, which voted about 600 million South African rands to pay victims for the suffering they had incurred. In addition, we tried to promote a reform of state institutions by recommending to the government, for example, the training of police and security officers about acceptable interrogation and questioning techniques so that they wouldn't resort to torture. We recommended human rights education in schools, to try to break down the years and years of apartheid indoctrination that black and white South Africans had experienced.
Finally, we accepted an amnesty, because the elections would not have occurred had there not been one, but we established a clear cutoff date. If you did not apply by a certain time, the criminal justice system would kick back in and you could be prosecuted. That was very important because it preserved in one both a restorative justice and a retributive justice model.
2 Foreword, "Supplement to Preliminary Study on U.S. and Allied Efforts to Recover and Restore Gold and Other Assets Stolen or Hidden by Germany during World War II," June 2, 1998. http://www.usis.usemb.se/nazigold/foreword.html
3 Rabbi Leon Klenicki, "Toward the Year 2000: Memory, Reckoning, and Reconciliation" (paper presented at the conference "Jesuits and Jews: Towards Greater Fraternity and Commitment," Krakow, Poland, December 27-31, 1999), p. 19.