PAPER TOPIC II
Truth and Reconciliation
Human rights violations and human rights abuse ultimately lead to questions of
justice. Those who violate the rights of others ought to be "brought to
This, you might say, is what happened at Nuremberg and at the
Trials (see also the Yale Law School's
Avalon Project) and what is happening ("what is being attempted") before
the International Criminal Tribunal for the
Former Yugoslavia, Tribunal for
Rwanda and most recently before the International
Criminal Court (ICC) in the Hague.
Such trials at Nuremberg and conducted in the case of the Former Yugoslavia
and Rwanda 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
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 drew
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."
Indeed Archbishop Desmond Tutu has
argued that the approach taken by the South African Truth and Reconciliation
Commission (TRC) wherein perpetrators confess the truth in an effort to
gain amnesty is, in some respects a "more just" way of dealing with past
violence. In the South African case, Tutu urged the rejection of arresting,
trying and punishing those found guilty of human rights abuse.
We now live
in a bifurcated world where two different strategies for reckoning with past
human rights abuse are in play.
There are efforts in places like Senegal
where Habre, the former leader of Chad, has been charged with war crimes, and Arusha, Tanzania where those who committed
atrocities during the Rwanda Genocide are being tried and at the International Criminal
Court (ICC) in the Hague.
Then, too, in sharp contrast, there are now 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.
rejects the juridical response to human rights violations recommended by many
human rights advocates in favor of the TRC's approach.
This is strong
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:
Subsequently he expanded upon
these remarks, putting the point more dramatically:
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.
Are there two kinds of justice and is one variety, the retributive kind, less
likely to lead to reconciliation than the other, the restorative kind?
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.
Can the truth really serve as a substitute for justice?
Or is the
pursuit of reconciliation a poorly disguised means of 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, that
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 example, Dafur
in Sudan (see the BBBC: Sudan Sets Up War Crimes
Tribunal. 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, less
concerned with "punishment [than] with correcting imbalances." So, too, it is
argued that the truth and reconciliation process provides real benefits, that
it promotes promotes "healing rather than hurting, moral learning, community
participation and community caring, respectful dialogue, forgiveness,
responsibility, apology and making amends."
Are you persuaded on this
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 is itself immoral because punishment is
retribution and retribution is vengeance and being vengeful is immoral.
you agree? And if so, why? for what reasons?
Drawing on the reading and
your own considered good judgment, make a case for or against the rejection of
the "Nuremberg trial paradigm" and replacing it with a new model of achieving
"justice," replacing Criminal War Crime Tribunals with a Truth and
Reconciliation Commissions, think of several powerful objections to your
argument, and respond to them.
V. JUSTICE THE MORALIY OF TRUTH COMMISSIONS
edited by Robert Rotberg annd Dennis Thompson, Princeton
- "Truth Commissions and the Provision of Truth, Justice, and
Reconciliation" by Robert Rotbtrg. page 3
- "The Moral Foundations of Truth
Commissions" by Amy Gutmann and Dennis Thompson, page 22
Decency to Barbaric Societies" by Rajeev Bhargava page 45
- "Moral Ambition
Within and Beyond Political Constraints: Reflections on Restorative Justice" by
Elizabeth Kiss, page 68
- "Truth Commissions, Transitional Justice, and Civil
Society" by David A Crockcr, page 99
- "The Moral Foundations of the South
African TRC: Truth as Acknowledgment and Justice as Recognition" by Andre du
Toit, page 122 (Supplemental)
- "Truth and Reconciliation in South Africa:
The Third Way" by Alex Boraine, page141 (Supplemental)
- "The Uses of Truth
Commissions: Lessons for the World" by Dumisa Ntsebexa, page158 (Supplemental)
- "Amnesty, Truth, and Reconciliation: Reflections on the South African
Amnesty Process" by Ronald Slye, page 170 (Supplemental)
Justice" by Kent Greenawalt, page189
- "Trials, Commissions, and
Investigating Committees: The Elusive Search for Norms of Due Process" by
Sanford Levinson, page 211
- "The Hope for Healing: What Can Truth
Commissions Do?" by Martha Minow, page 235
- "Doing History, Doing Justice:
The Narrative of the Historian and of the Truth Commission" by Charles Mater,
- Constructing a Report: Writing Up the "Truth" by Charles
Villa-Yicencio and Wilhelm Yerwoerd. page279 (Supplemental)
HANDOUTS AND READINGS POSTED IN LATTE
DOCUMENTARY FILM FOOTAGE OF SOUTH AFRICA'S
DOCUMENTARY ON THE INTERNATIONAL CRIMINAL
DOCUMENTARY FILM FOOTAGE OF THE NUREMBERG
GUIDES TO READING AND WRITING PHILOSOPHY
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