Brandeis University, Philosophy Department
Spring 2008
Brandeis University Web Stite

Philosophy 19A

Human Rights

Professor Andreas Teuber
Prof. Teuber


PAPER TOPIC II

Amnesty v. Punishment

Human rights violations and human rights abuse ultimately lead to questions of justice. Those who violate the rights of others ought to be, under the prevailing international ethos, as the saying goes, "brought to justice." This, you might say, was what happened (or depending on your point of view: "what was attempted") at Nuremberg and at the Nuremberg Trials and what is happening ("what is being attempted") before the International Criminal Tribunal for the Former Yugoslavia) and in Arusha, Tanzania before the Tribunal on Rwanda.

Such trials are strikingly similar in form and procedure to criminal trials in a domestic context wherein charges are brought against the perpetrators (defendants) suspected of having committed extreme human rights abuse. The charges of human rights violations are often themselves referred to as "war crimes" and in those instances where the evidence for the commission of such crimes is beyond a reasonable doubt and the perpetrator or defendant has neither a sufficient justification or excuse verdicts of guilt are delivered and punishments of appropriate severity imposed..

But as the last century has drawn to a close alternative ways of dealing with war crimes and human rights abuse have arisen that both challenge and even reject what has been described as the "Nuremberg Trial paradigm," calling into question whether the relatives of victims and the community should prosecute and punish those who have violated basic human rights after a period of mass violence.

Indeed Archbishop Tutu has argued in his book that the approach taken by the South African Truth and Reconciliation Commission (TRC) wherein perpetrators confess the truth in an effort to gain amnesty and for while the relatives of their victims may respond with forgiveness is in some respects "more just" a way of dealing with past violence and in these cases and in particular in the South African situation Tutu urged the rejection of trying and punishing those found guilty of human rights abuse.

We now live in a hybrid world where two different strategies for reckoning with past human rights abuse are in play. There are efforts in places like Kosovo and Rwanda to gather forensic evidence and testimony to identify and indict those who violated the human rights of others with an eye to sentencing and punishing those responsible for past wrongdoing. Then, too, there are efforts, of which the South African Truth and Reconciliation Commission or TRC is perhaps the most familiar example, to relieve human rights violators from criminal trials and sanctions, seeking instead, through public hearings of apology and forgiveness, reconciliation between the relatives of the victims and their victimizers. To date more than twenty-two countries have established truth and reconciliation commissions on the model of the South African experience. What are we to make of this startling development that urges reconciliation between the relatives of victims and the perpetrators of the most horrifying human rights violations?

No doubt efforts towards "reconciliation" raise their own set of moral, political and practical difficulties that require close examination accompanied by a re-thinking of the successes and pitfalls of the juridical responses to wrongdoing promoted by the international human rights movement.

Tutu rejects the juridical response to human rights violations recommended by rights advocates in favor of the TRC's approach. This is strong stuff. He believes that the work of the Commission did not simply supplement or subvert the traditional means of achieving justice through trial and punishment; on the contrary Tutu is convinced that South Africa's TRC brought an older, deeper, conception of justice to light. As Tutu remarked in his capacity as the Commission's Chairman in the Forward to the TRUTH AND RECONCILIATION COMMISSION OF SOUTH AFRICA REPORT:

Those who have cared about the future of our country have been worried that the amnesty provision might, amongst other things, encourage impunity because it seemed to sacrifice justice. We believe this view to be incorrect. The amnesty applicant has to admit responsibility for the act for which amnesty is being sought, thus dealing with the matter of impunity. Furthermore, apart from the most exceptional circumstances, the application is dealt with in a public hearing. The applicant must therefore make his admissions in the full glare of publicity. Often this is the first time that an applicant's family and community learn that an apparently decent man was, for instance, a callous torturer or a member of a ruthless death squad that assassinated many opponents of the previous regime. There is, therefore, a price to be paid. Public disclosure results in public shaming, and sometimes a marriage may be a sad casualty as well. We have been concerned, too, that many consider only one aspect of justice. Certainly, amnesty cannot be viewed as justice if we think of justice only as retributive and punitive in nature. We believe, however, that there is another kind of justice -- a restorative justice which is concerned not so much with punishment as with correcting imbalances, restoring broken relationships -- with healing, harmony and reconciliation. Such justice focuses on the experience of victims; hence the importance of reparation.

Subsequently he expanded upon these remarks, putting the point more dramatically:

We contend that there is another kind of justice, restorative justice, which was characteristic of traditional African jurisprudence. Here the central concern is not retribution or punishment. In the spirit of "ubuntu," the central concern is the healing of breaches, the redressing of imbalances, the restoration of broken relationships, a seeking to rehabilitate both the victim and the perpetrator, who should be given the opportunity to be reintegrated into the community that he has injured by his offense.

Are there two kinds of justice and is one variety, i.e., the retributive kind, less likely to lead to reconciliation than the other, i.e., the restorative kind? Can the truth really serve as a substitute for justice? Or is the pursuit of reconciliation a poorly disguised means for failing to realize a just resolution of past injuries? What do you think? As already remarked, Tutu rejects what he calls the "Nuremberg trial paradigm." It is his view that "victims should not press charges against those who violated their rights, and the state should not make the accused "run the gauntlet of the normal judicial process" and impose punishment on those found guilty."

In the case that is made, both practical and moral, against applying the Nuremberg precedent to South Africa, human rights advocates are put on their toes, pressing them to explain how bringing perpetrators of human rights abuse to justice can break the cycle of impunity in places other than South Africa, in, for examples, Rwanda, Bosnia, and Kosovo. In making his case against the applicability of the Nuremberg precedent to South Africa, two arguments, in particular, stand out.

One is the argument that the truth and reconciliation process is perfectly compatible with justice and is better suited to realize it than the Nuremberg precedent, only the justice that is realized is a different kind of justice, less concerned with "punishment [than] with correcting imbalances." What do you think? Are you persuaded on this matter? And if so, on what grounds?

Then, too, there is the argument that the Nuremberg precedent because it indicts, tries, sentences and punishes individuals who violate human rights. To do so is morally wrong because punishment is retribution and retribution is vengeance and vengeance is morally wrong. What do you think? Do you agree? And if so, why? for what reasons?

Make a case for or against the rejection of the "Nuremberg trial paradigm," and for replacing it with a new model of achieving "justice," the Truth and Reconciliation process itself, think of several powerful objections to your argument, and respond to them.

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GOOD LUCK!





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