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Between Vengeance and Forgiveness Seminar:
Reconciling Human Rights and Conflict
Transformation Approaches to Coexistence

A Seminar Series for Members of the Brandeis Faculty and Guests: 1999-2000

Faculty Seminar with Martha Minow
Wednesday September 22, 1999

Seminar Participants:

  • David Gil
  • Wellington Nyangoni
  • Cindy Cohen
  • Martha Minow
  • David Wong
  • Dan Terris
  • Larry Fuchs
  • Donna Hicks
  • Ginny Straus
  • Eileen Babbitt
  • Elise Boulding
  • Erica Harth
  • Ann Schaffner
  • Pam Allara
  • Linda Hirshman
  • Andreas Teuber
  • Joe Reimer
  • Anne Carter
  • John Capitman
  • Steve Burg
  • Kaja Autler
  • April Powell-Willingham
  • Sonia Robinson
  • Jane Hale
  • Dora Older
  • Mary Davis
  • Gordie Fellman
  • Barbara Bamberger

I. INTRODUCTIONS
Cindy Cohen introduced the seminar and welcomed the faculty.

David Wong introduced Martha Minow.

Professor Minow teaches courses in Family Law, Civil Procedure, Law and Education, and Law in Social Change at Harvard Law School. She was Law Clerk to Justice T. Marshall. She has authored three books and over 100 articles and is a fellow of the American Academy of Arts and Sciences. She is codirector of Children's Studies at Harvard and a member of the Independent International Commission on Kosovo. Her work inspires rigorous thinking, dialogue, hopefulness and engagement.

II. PRESENTATION/b>
Prof. Minow asked everyone to introduce themselves and say the first word that came to mind when they heard the word 'justice':

  • David Wong: equality
  • Donna Hicks: equality
  • Eileen Babbitt: rights
  • Erica Harth: equality
  • Pam Allara: fairness
  • Andreas Teuber: equality
  • Anne Carter: peace
  • Steven Burg: fairness, equality - elusive
  • Kaja Autler: equality
  • Sonia Robinson: fairness
  • Susan Walner: fairness
  • Gordie Fellman: unequal
  • Mary Davis: equality/equity
  • Dora Older: acknowledgement
  • Jane Hale: peace, freedom
  • Robert Irwin: shalom
  • Marci McPhee: injustice
  • April Powell-Willingham: peace
  • John Capitman: inclusion
  • Joe Reimer: compassion
  • Linda Hirshman: virtue
  • Ann Schaffner: equity
  • Elise Boulding: restoration
  • Ginny Strauss: judge
  • Larry Fuchs: fairness
  • David Gill: human survival
  • Wellington Nyangoni: fairness
  • Cindy Cohen: restoration

Martha Minow explained she was a middle child and a daughter of a lawyer, which perked her interest in fairness and conflict resolution at an early age. Family law is driven by a similar idea of equal rights. She spoke of her deep interest in multi-ethnic societies and how she had made the mistake of going to law school thinking it would be about justice. But, she noted, she should have known better: if it had been justice, it would have been called "Justice School, " not "Law School."

So, she said, she had to look beyond the law to understand justice. This led her outside the law school and to a number of places, including the arts and the theatre.

Minow then talked about Helen Bamber who founded one of the very first clinics for survivors of torture. She was very involved in human rights work and in Amnesty International. But, Minow said, Bamber always sensed that there was something inadequate about the rhetoric of human rights because it did not respond in any full way to the suffering she saw in people.

Minow reflected on a story she read in Bamber's biography on a Chilean torture survivor. Minow reiterated how Bamber described his experience and the story he told:

"The torturers took my clothes and wore them while torturing me. It was as though they want you to feel you are torturing yourself. They take away your personality and destroy everything you love."

Minow: No existing framework is adequate to respond to these situations. It is not surprising that contemporary responses to the numerous instances of mass violence lurch between different rhetorics: some intriguing, offering promise. But, Minow added, none are adequate. We need to start with an acknowledgement of inadequacy. Any hope or expectation of closure or of adequacy is a mistake.

Minow then proceeded to outline several contemporary responses to mass violence and to identify the rhetoric and central terms of each:

1. The Rhetoric of History with its focus on truth;

2. The Rhetoric of Theology with its focus on forgiveness and reconciliation;

3. The Rhetoric of Justice with its focus on punishment and compensation and deterrence;

4. The Rhetoric of Therapy with its focus on healing;

5. The Rhetoric of Art with its f ocus commemoration and disturbance;

6. The Rhetoric of Education with its focus on learning lessons.

By evoking any of these combinations of rhetorics, there is promise in responding to mass violence. We cannot make people whole or prevent the horrors, but these rhetorics can help create a bridge to the future.

Minow noted how the words that seminar participants had provided at the outset ranged along a broad spectrum - from "equity" and "fairness" to more specific concepts like "restoration" and "peace." It is an ample list, she said.

Quoting from an essay by Martin Golding, she pointed out how you could create a spectrum of formal to informal responses to wrongdoing. On one end the most formal institution would be the court, then as you move along the spectrum you would come to institutions and practices of arbitration, mediation, and negotiation until you arrive at the opposite end, and come to therapy. The words of seminar participants could be arranged throughout this spectrum.

There is a vibrant debate in the legal profession about whether alternative dispute and conflict resolution practices and peacemaking efforts fit under the rubric of justice, or whether these alternative ways of resolving disputes and reducing conflict are an abandonment of justice. Is peacemaking a way to achieve the goal of justice or is it an abandonment of the enforcement of rights?

What is innovative and remarkable about the past century is the unprecedented variety of responses to mass violence. The launching of the international criminal trial was one such response. The Nuremberg Trial held out the possibility of applying the rule of law to mass violence. The rule of law was adversarial and individualistic, focusing as it does on legal procedure and the assignment of responsibility to individuals. It was an effort to unlock a chain of events and trace it, on the evidence that was available, to those individuals and only those individuals who could be shown beyond a resonable doubt to have been responsible.

Minow then outlined and commented upon eight distinct, though not unrelated, responses to mass violence since the Second World War:

1. The International Criminal Trial - (The Nuremberg Trials)
This great innovation led people to think there would be an international court. But nothing happened for 50 years until the International Criminal Tribunal for the Former Yugoslavia was establlished, and then, for Rwanda. The institution of these two tribunals has set the stage for a permanent international court. By the end of 1998 120 nations had endorsed the establishment of an international court.

So, Minow commented, this is one model: "the criminal trial." The international tribunals have also inspired domestic trials. Several domestic courts have permitted civil actions against torturers who committed torture in other countries. U. S. Federal courts are now authorized to enforce international law. The most recent eample of this phenomenom is the indictment pending in Spain against Pinochet. MNinow : "the fact that this can now happen has changed everything."

2. Reparations
After WWII there were several landmark efforts to provide restitution of properties and these efforts continue to this day. Now in the field of property law, there is no more cutting-edge issue than the issue of restitution and reparations, whether it be the restitution of works of art or the bones of relatives who were victims of past injustice. The Japanese-American struggle is the most prominent example of this reconciliation process in the U.S. It is also serves to illustrate both the promise and the pitfalls of the process. The promise is to be found in the provision of a forum in which people can be heard and public narratives exchanged, and, given the right confluence of circumstances, public acknowledgement of past injustice and forgiveness can occur. The chief pitfall of this process lies in the widespread perception that money can never compensate for human loss and the immense suffering of past injustice nor can it make whole what has been taken away how can money ever make whole what was taken? To fight over money as compensation for past wrongs can seem demeaning and trivializing and yet, Minow commented, if no money changes hands, how serious can the effort to make amends really be?

3. Truth Commissions
There are currently 21 Truth Commissions in the world of which South Africa's Truth and Reconciliation Commission is the most ambitous example. Truth Commissions take various forms: Some are public inquiries established separately and authorized to function independently of, though in conjunction with, the institutions of the legal system. In many cases it is a domestic body. In South Africa it was created by Parliament. The truth commissions tend to work under a mandate to gather the stories of victims and survivors, to investigate what has been denied and made secret, and to publicize stories and findings. Some commissions also have been given the discretionaty power to pass on information and their findings to prosecutors. In South Africa, the use of amnesty was the result of political compromise. There are both problems and promise in this process.

As an illustratration, Minow related the following: a mother came to South Africa's Truth and Reconcilation Commission to find out what had happened to her son . Her son, who was politically active, had been imprisoned and while in prison, started to lose his hair and became paralyzed. He was later released, whereupon he sued the government, but then he disappeared. She came before the commission with a lock of her son's hair in her hand, stating this was all she had left of him. She wanted to know what had happened to her son.

Within weeks of the mother's appearance before the commission, a parallel process in the Amnesty hearings took place where several government officials came to the Commission seeking amnesty. Among the conditions for receiving Amnesty, the Commission required persons to give a full account of their behavior, explain their political motives, and demonstrate how their conduct for which they were seeking amnesty was commensurate with their political motives. These officials described that they had poisoned this woman's son with rat poison. The woman, the boy's mother, was there at the hearing with her relatives and friends, and there was understandable shrieking from the audience as this was disclosed. Later the woman said she was glad to know what had happened to her son. It gave her solace. It would never bring him back, she said, but the account by government officials of what had happened filled an aching need to know what happened. These events would never have occurred had the Truth Commission not been set up.

In an interesting side-note, Minow commented that although the mother said she was very grateful to the Truth Commission for their helping her to find out what had happened, she believed, nonetheless, such "knowledge" was not enough, adding "there should be prosecution." This was a widely held view, and insofar as indictments have not been brought this desire on the part of many of the victims has not been addressed. On the other hand, South Africa's Truth Commission has provided some measure of acknowledgement, some hearing, and some restoration of dignity to victims.

Still, Minow recalled, others believed that the process put into motion by South Africa's Truth and Reconciliation did accord some measure of justice. One woman, also a mother who had lost her son, asked how she felt about the Truth Commission, stated, if hearing what happened means that her son thereby becomes, in that moment, human again, and she and all the others get their humanity back, then she supports this thing called "reconciliation." Minow, however, cautioned that this view constituted a very generous interpretation of the concept of "justice." Still it holds out the promise of being able to claim one's "difference" from one's oppressors, enabling one to respond to them as human beings and to their humanity.

In the case of South Africa, Minow noted, the fact that the majority got their country back, makes it possible to be this generous. The process of reconciliation in South Africa was helped, too, by the existence of a mixture of two traditions of "justice" - a Christian one and a deep, traditionally African, notion of justice that is both healing and inclusive. The fact that there was violence not just on one side but on all sides also helped. All these things, taken together, made South Africa's Truth and Reconciliation Commission a real "fit" given the cultural and political circumstances of the time.

4. Stripping former Officials of their Positions
"Stripping" former officials of their positions, of their pensions, of their privileges or of their power to serve in government or serve in state owned enterprises, is a response to mass violence that is particularly popular in Eastern Europe. It is usually not intended as punishment, but it does shame the perpetrators and serves at least that minimal sense of justice that insists that those who do wrong be do not benefit from their wrong-doing.

5. Memorials
There have always been memorials, but the memorials of the past have traditionally been commenorations to great exploits, of wars won and aggressors vanquished. It is a only a recent 20th century phenomenom, Minow noted, that we see memorials not to the victors or to soldiers in triumph, but to victims. The Vietnam Memorial in Washingtoin, D. C. is not a celebration of triumph. It is not triumphant. Significantly, Minow pointed out, the Vietnam Memorial is today the most visited place in Washington D.C. It has more vistors than the Jefferson and Lincoln Memorials. And it has spawned a host of "off-shoot memorials". Indeed the Vietnam Memorial has given birth to a whole culture of remembering. People bring gifts, and build shrines in the shadow of the main Memorial and create memorials in response to the Memorial. The Vietnam Memorial is not a mausoleum but a dynamic place, an active engagement with memory.

6. Education
Education has been another response to mass violence, although again, in this century, we are witnessing something new, something different: education about and for peace, not about triumph. We are also witnessing a loosening of the grip of the idea of the single story. There have always been struggles about whose story gets told. But we are beginning to see, Minow believed, the emergence of a new educational ideal: the education of a new generation of children to numerous narratives, not just to one dominant narrative.

7. NGO's
One of the most exciting areas in the Human Rights movement of the 20th Century, Minow noted, has been the rise and proliferation of NGO's whose primary task has been to build consciousness on the ground. This is a meeting ground of elites, where foundations provide seed money to people in the field who, in turn, do the very hard work of changing minds, mobilizing people, providing services and building a greater awareness of self-respect and human dignity.

8. Therapy
One of the biggest challenges of the 20th Century, in the post-Freudian era, has been the difficulties faced by traditional forms of therapy in their encounter with the suffering and trauma of victims of mass violence. The growing consensus of many of the people who work in the field is that therapy itself needs to change. The assumptions of an objective and neutral therapist are not workable when you are dealing with circumstances of mass violence. Indeed, Minow suggested, a first and essential step in establishing a trusting relationship between the therapist and a victim of mass violence requires the naming of the injustice, which means that the therapist cannot be a blank wall and, in a traditional therapy sense, "objective."

So , Minow concluded, these are some of the responses within the range of responses to mass violence that have surfaced in the last century. There are others as well.

Minow then raised and asked a series of questions:

1. "What purposes are advanced by any of these responses?"

2. "What vision of justice is advanced by any of these? "

3. "Which are compatible with which?"

4. "Which should be used in what circumstance?"

5. "When is it good to pursue one of these responses as opposed to another?" Minow then opened the conversation up to the group for discussion:

III. DISCUSSION/b>
Elise Boulding raised a principle, a question. She stated that Prof. Minow seemed to assume that one great step forward in the modern period was the Rule of Law. She said she, too, grew up thinking that this was the case. But now she had come to question what we really did. Thinking back to the pre-Colonial era, the traditional way of dealing with wrong and injustice and violence was a basic concept of restorative justice.

Today there is a group in Uganda trying to bring together some traditional healing circles to do what the courts cannot do. There are about half a dozen examples of this. So, if we say that the Rule of Law is the great contribution of the West to civilization, we have a problem. We have lost the traditional ways of healing and reconciliation and ireplaced these tradtional ways with a retributive system. Maybe we need to rethink what we did.

Minow said she was sympathetic to what Boulding had to say. To question the conception of justice as it is embodied by the ideal of the Rule of Law and in our court systems is valuable. Whether particular traditional practices are even available to revive or ever could respond to the level of violence she has been talking about is a different question. Even the restorative justice movement says these community-based processes are only useful in dealing with petty criminal violations, where a serious felony has not been committed and there is no loss of life. Certainly if you are talking about mass violence or mass rapes, these are not the sorts of crimes with which traditional forms of justice are equipped deal in a normal manner. The promise of restorative justice was, nonetheless, very present in the South African Truth and Reconciliation Commission (TRC), where a real attempt was made to create a setting where it would be possible to reclaim wrongdoings into the community. A way is opened for perpetrators of past injustice to rebuild their relationship with the community by doing something publicly, rather than being ostracized.

Anne Carter-states she is having trouble with 'justice'. She doesn't see the relation between violence and justice. She sees that restoring peace and dignity is a worthy thing but how is it related to justice? It sounds like exchange of goods - this violent act is worth 25 lashes. It has a ring of economics and this ring is pretty sour.

Minow's response: Perhaps the 'project' of the Rule of Law was a big mistake, but the Project, as applied to violence and to mass violence (which isn't the same thing), is to say that the liberal ideal of developing a language, rhetoric and institutions to accompany them, which install each person as an equal member of the society, enjoying equal rights, is the mechanism for peace. It is also the mechanism for restoration after breech. Now that was the project, but it could have been hugely mistaken. One of the ways to defend it, in the criminal context, is to say that vengeance is the understandable response after there has been violence. It is for those who are victimized, or their friends or clansman, to seek amends - thus the exchange. But it seldom stops at an eye for an eye, it usually escalates.

The project of retribution under the Rule of Law is to tame vengeance. It is to say that the impulse of vengeance is to be assigned to someone else, because those who have been violated are entitled to do something, but if we leave it in the hands of those individuals, something could go very wrong. So, we turn it over to a cool, dispassionate hands of the state. It is a controlled vengeance, removed and given to an objective hand. Even if there is no deterrence, it does offer a mechanism for accountability, truth-telling and public record. It may have some influence on deterrence, not of wrongdoers, but of bystanders. If what you yearn for is peace, these are flabby tools at best.

David Gill: He wanted to bring up the issue that violence is not an event, but a stage in a process. The measures we discuss respond to the last link in the chain. Unless we begin to think of where the chain comes from, the initiating act that brings the chain of violence are social arrangements that interfere with meeting the needs of people. What we then call violence is actually reactive or counter-violence, because when people's needs are consistently blocked from being realized, their constructive energy is transformed into destructive energy directed against themselves or directed against others. The measures discussed are all state sanctions, and I n his analysis, the state is the source of the initiating violence, the state legitimates the outcome. Gill began to think of these issues when he was a victim of Hitler in Europe. Being more powerful than Hitler is not the answer. The answer is to eliminate power over people. If we, in reaction, do horrible things, practice it, we become essentially the same. So we to move toward the sources and ask ourselves where is this coming from?

Minow Response - To elaborate the point David Gill makes, Minow cites Michel Foucault. Foucoult has the analysis that if you respond to violence with violence, you simply have an escalation of violence. If you understand state power as a monopoly of violence, and an effort to be a bigger stick, its response is to simply exacerbate and fuel the dynamics of violence. She believes this argument is very compelling. Continuing along with Gill's line, one way of understanding the links in the chain is to look at Amartya Sen's work. Sen has argued that there has been no famine in a democratic country. If you have institutional arrangements so people can participate and there is freedom of press, it is not about poverty, it is about participation. This is an extremely compelling argument. That is not, however, "no state". That is to use the structures of statehood to create democratic institutions, and to enforce such things as freedom of speech.

She disagrees with some of the things Gill said, suggesting that some of the responses she identified are not state-based: NGOs, truth commissions sponsored by religious organizations, artistic responses. The vision of human rights cannot be held in monopoly by the state. Some of the most powerful, hopeful activities have nothing to do with the state.

On the issue of understanding of the causes of violence, that is a big one. Minow spent the summer looking at hate. She said she didn't think she learned very much, but one thing she did conclude. It is her opinion that hate is not just due to the lack of needs being met. There are other elements too. One element is the capacity to dehumanize others. Not everyone who is poor and not everyone whose needs are not met, is violent. So what leads to the capacity to dehumanize others? This is important. What is also important to note that many people who orchestrate some of the most grotesque forms of mass violence have all their basic needs left (in a material sense) so it leads her to wonder what makes people have the capacity to dehumanize others, to locate the source of their unhappiness in others. To prevent these things, there are several strands of what was discussed, that are relevant. The Rule of Law is not irrelevant. The idea that every human being actually is an inheritor of the tradition and equal to the respect of rights accorded.

Larry Fuchs - He discussed a number of dimensions of complexity of this issue. After he came out of the Navy after WWII, he became very involved in an organization called the World Federalist Movement, there was a mantra-- 'There is no Peace without justice, and there is no justice without law". Does this mean justice guarantees peace? No. Does it mean law guarantees justice? No. But there is something to that mantra. If searching for one cause of violence is what is attempted, we may not be looking in the right place.

Minow - responded by stating that she has a dean that is a sociobiologist. He heard what she was working on, and he suggested that she read sociobiology. So, she followed up and read a number of books on big apes. She learned that there is this long tradition of reconciliation among the big apes. There are elaborate rituals after the males engage in their struggles for power and domination, then there is this process of stroking each other and grooming each other and making amends after domination is established. It is an elaborate, beautiful gestures. But she walked away thinking that this is not relevant to the issue, because the apes do not engage in mass violence. They don't torture each other or murder each other. While she is hopeful that there is a capacity in our biology for reconciliation, it doesn't seem commensurate with what we do. It is crucial to think about biological inheritance, but more importantly, what human beings biologically have is the ability to create culture, and our culture has led to societies where people can mobilize hatred against each other. This is not something that sociobiology can help us with.

Andreas Teuber - Most of us assume there is something called justice. Whatever justice might be, it is suppose to be a "just" or fair outcome. As we go down the spectrum, we may be getting further and further away from justice. The TRC may be 'just' but not just enough. There are some aspects of the trial that are teased out or unpacked from the more formal practice of the court. It seems as if some of the things that are being pulled out and then developed and emphasized seem to follow on the heals of having engaged in this practice over a certain period of time. He uses a book by Michael Walze rto illustrate his point about King Louis being brought to trial. But there are certain things that happen in the trial that no one really expected. There are aspects that are similar - stripping of all his accoutrements, restoration; there is public record, accountability, and truth telling.

In the case of the International Tribunal there was a question about what justice it isn't. Is this a victors justice?. Is this ex-post-facto justice? When all is said and done, when the war is over, how do you then have justice? Why are the judge's decisions so long in the Nuremberg Trials if it is just victor's justice? It seemed as though there was some need to explain or reason it out if the tables were turned in the Nuremberg Trials.

Minow Response - Is the court (as the most formal structure) for the Rule of Law form of justice have anything to compel us? It does now. It has become part of theatre, movies; yet, the very recognition of that theatrical dimension of the trial exposes the vulnerability to the forces that undermine its promise. The show-trial is only too well known. A few years ago she was teaching a course to a group of people who teach American History in other countries. She asked them 'What is a political trial?' and they all, one by one, responded by saying that "a political trial is what all the trials are in my country". Unfortunately the trappings of the courtroom have been as associated with oppressive power as they have been with independence of they oppressive power. Do they carry with them the possibility of restraint.

In South Africa, it was crucial that the TRC not act like a court because in South Africa the courts were where some of the worst injustices happened. It was absolutely deliberate that none of the hearings be set up in a place that look like a court, that the Commissioners respond and cry and behave in a way that judges never do, that there be no cross-examination of victims, which is the test of credibility in the West trial. That very recognition led to the grant of the cross-examination right of the victims to cross-examine that offered some small semblance of restoration of dignity of the victim. It was the acute attention to how it is not the trial that makes it most interesting. It was a total recognition of the power to interrupt the story only when the victims could cross-examine.

Donna -- commented on the question of human needs and the failure to control human needs. She said she is less comfortable than Minow throwing that issue out, not linking it to the capacity to dehumanize individuals. We have to think carefully about what needs we are talking about, such as the psychological needs of individuals. The needs for identity, sense of belonging, security. One can easily link the capacity to dehumanize to the perpetrator of these mass atrocities to not having these psychological needs met. When a person has been deeply humiliated, whose identity has been questioned or marginalized, who doesn't feel a sense of belonging anywhere, that is an impetus to initiate this chain that Minow was talking about early. In her conflict resolution approach, they discuss these issues before bringing the parties together. The link towards one's own feelings of being dehumanized is direct to these violent acts.

Minow's Response - This is a great synthesis or connection between these different perspectives. It is very powerful and important to study how those who get drawn into as well as those who plan violent acts are themselves injured or in need. To do so, however, raises the issue of 'excuse'. This is a hard issue. In the International Criminal Tribunal for the former Yugoslavia, this question is posed. There is an individual who said he killed 150 people under duress. Should he be excused from the charge of genocide? If the question is one of judgement, under a legal framework, this is not an excuse and people should be held responsible. What we do with them once we hold them responsible is another question.

Partly because the criminal trial is held out as the gold standard, the focus is on the perpetrator. What about devoting the same resources to the victims? They are also the latent holders of the next round of revenge. Shouldn't we be focusing on them?

Donna Hicks - One of the issues she is grappling with in her work is the complexity within conflict resolution is that the victimized party needs to have the acknowledgement of the perpetrator of the violation that was done to the victim. There is such a tension in the room with one who has wronged the other. The victimized party needs to have the acknowledgement from the perpetrator. So how do you get the higher power party to do the kind of acknowledgement that is necessary for this reconciliation process to be initiated? What does it take for a person who has robbed a person of his dignity to say, "yes, we did this"? How do you get them to admit that they did something wrong? Why is this so hard to do? She is interested in the perpetrator group because it is inextricably linked to the healing process for the victim.

Minow's Response -- If the healing or future for victims depends on the turn in the perpetrators, it won't be enough, it won't happen enough, it won't be soon enough. I think we need to spend as much, if not more, attention to the victims and figure out ways how they can make their own turn without linking their fates to the very perpetrators who put them where they are. This is why the discussion of forgiveness is so problematic.

So what's wrong with forgiveness? Why should the victim have this new burden? To have this extraordinary capacity to let go of this resentment or to include the other? Why? Some people say it is a beautiful act when it is in relationship to the perpetrator's apology and acknowledgement of wrongdoing. Even in those cases, it has to be a chosen act by the victim; otherwise there is no freedom or a re-issuing of the violation. In too many cases, there is no apology or no wrongdoer available. Some people say if the victimized forgives, it can start the chain for the perpetrator. That too is too much to ask. Why should the victimized be the cure for the perpetrator? To make that the expected response or worse, the institutionalized form of mass amnesty is not acceptable is a travesty.

Jane Hale "If you'll forgive a linguistic analysis, it seems as though there was a slide from the term forgiveness to letting go of resentment. These are not exact synonyms. I understand resentment as from the French word resentein, which means 'to feel again'. If I have resentment, I am hurting myself; I am feeling what the perpetrator did and that is what I need to let go of. I don't really care how the perpetrator feels of my state of mind. Between forgiveness and vengeance is this point where you let go of the resentment so you are not hurting yourself anymore, you are not letting that person hurt you. The rest is intellectual. You get it outside yourself."

Minow - That response is wonderful. Three summers ago, when looking into the idea of forgiveness for the book, most of the books on forgiveness were Christian - there were this chain of response and it can enable the change. There were a few that took the approach of who cares about the perpetrator? What forgiveness is about is healing the individual, and then forget the forgiveness, it's about finding a way to live so you forget about the pain. Wellington Nyangoni - made a comment about the TRC. One of the most important things the freedom fighters of South Africa wanted to hear was to hear the powerful statement that they are sorry. The national party comes out saying 'we're sorry". This creates a feeling of being triumphant. One thing that has troubled him about Minow's presentation about violence, is that there are different types of violence, and it seems as though there is really no focus as to what type of violence we are talking about. In the case of South Africa, where the colonial powers went and massively alienated the land.

They took the land and threw these people in impoverished conditions where they can't make a living. Even in South Africa with the TRC, massive populations are poor beyond belief. An economic system was constructed such that it preaches economic liberalism and free enterprise, yet at the same time these people are living in incredibly poor conditions, to the extent that these people can never be part of the process. Some people believe this is a form of violence in an economic sense. I don't know where we go from here, because the emphasis of our discussion has been on political violence and political violence is not the only violence, there is also property or economic violence that was deliberately set up.

Minow Response - The two parts connect. How we define violence, whether it's broad enough to include both economic deprivation and the deliberate creation of this circumstance. You can be poor and be able to sustain yourself and you can be poor and not be able to sustain yourself. This is what the colonial government did - people who could at least raise food for themselves now cannot do that because they moved the people to places where it is not possible to grow food. What is intriguing about the TRC is that it offered the possibility of bringing sectors of the society including the business community and the media, the leaders of the powerful sector, where people could ask 'what did you do and what did you not do that led to and perpetuated apartheid'. The idea that that would help to build the political momentum to support the massive redistribution that has to happen if South Africa is going to be able to fulfil its promise of creating a democratic society. South Africa has the most beautiful constitution of any country anywhere, will not be able to fulfil anything in the constitution unless there is massive redistribution. The most compelling avenue into this is the new generation of young people, mostly young women who emulated and supported the ANC and the resisters to apartheid and now are completely disenfranchised while the people they emulated and the ANC are in government and doing great. These young people, who had no access, are shut out on the new South Africa. This is wrong and this has to change.

David Gill-It is the same in this country with the native people and the slaves, the process goes on.

Minow Response - One reason to work on this stuff is to come up with a language and a vocabulary to hold a mirror up to the United States. Again, I'm not sure what to say fully in response because the question addressed here is what small steps do societies take after mass violence? It does seem that unless those steps include steps that help to build the foundation for the reconstruction of societies we're just laying the groundwork for another waive of disasters and this has got to be foremost in people's minds.

Gordie Fellman-was an activist in Palestinian/Israeli issue and for years heard the Palestinians say they understand what the Holocaust was about, they understand what they did to the Jews. There was an acknowledgement from them. There is something profound about the concept of 'acknowledgement'. On the Jewish side, there is a question of 'yeah but, who's gonna acknowledge what they did to us? There is a cycle which begs the question what does it mean to acknowledge? What does it mean to not be able to acknowledge. There is a part of which one says 'who's gonna deal with what I returned, out of which I acted. One reason Rabin was killed was because he began to acknowledge. Barak is on the way to doing this. There are indications. There are indications that this is happening - Gorbachav acknowledged, apologized to Afghanistan

The other thing is about the problem with the American justice system; Abbie Hoffman's famous line is that in the halls of justice the only justice is in the halls. Another report came out on global warming and our ecological crisis - how do we get the people to who are destroying the planet to acknowledge their role in this, we would not be ready to forgive them but we can insist they stop doing it. There's something about our system that on one level has nobility to it and on another level we do this because of the horrible injustices around the world that we have a decent standard of living because we have destroyed portions of the world. Shouldn't we get nervous about celebrating our democracy when much of it seems to be about supervising the slaughter of a half a million Indonesians - part of what it takes here is that law is a system which is called upon to justify global exploitations and power imbalances; and it is done heavily in our country where our institutions work in such a way that the notion that law has the capacity for fairness and justice but this is so severely undercut by this global despair - is really the question.

Minow - So many people have said, how can you work in this subject, you work on discrimination and family law, but my prior work was largely about the confluence between knowledge and power and how people who are in a position of power don't even see the power that they wield. This is crucial to understanding how discrimination law tries to undo it and doesn't always undo it. The same insight is underlying what Gary is saying. The way people who advocate the rule of law in the western way can do so with no guilt or shame is that they don't even see the consequences of what they are doing. 358 billionaires in the world own as much as everyone else in the world.

The cycle which is the one that is most intriguing, how those who are victimized often become the oppressors, and then when there is this call for an exchange of apologies there is this mismatch because, who is there to apologize to them? After all, the Afrikaners viewed themselves as gross victims - which are what fueled their sense of doing the right thing. They were themselves the beleaguered minority.

Maybe it is possible to think about, in an exchange where someone says 'but who's gonna apologize to us?' to offer everyone the chance to say here's the wrongs that were done to us. But you also need to consider the wrongs you have done. There is this missing piece, particularly in the United States current victim culture of oppression Olympics, you get your moment to say what your group has experienced, with no obligation to consider what you have done to anyone else or what your sense of victimization has done to your capacity to see anyone else's suffering. It is sometimes described as the power of the weak but boy, it certainly observed more in the breach than in the performance.

Fellman - The arts may have a role to play in this. There is an untapped resource there.

Minow - Couldn't agree more, especially interactive arts. This summer I worked with Anna Devere Smith and her project on civic dialog and the arts and this is her project- is there a way that the extraordinary work of artists can be brought, in its creative phase, into a setting with a public so that there can be a bigger space for discussions of justice, civil society, justice. This is incredibly hard to do - it is so tempting to critique the performance or the artist, so tempting for each person to get up and give their sob stories and their speech, but when it works there is transcendence, an 'aha experience'.

On that point, it seemed as though one of the functions of the TRC is that it served as a theatre experience so that people could have a cathartic experience. The Brandeis University Library just acquired the two Bill Moyer videos and also the follow-up conversation with Desmond Tutu.

Mary Davis This may go off in another direction or it may revert back to something discussed early, but as an attorney also and someone who is working in juvenile justice, can you comment on the efficacy of something that has been institutionalized in our very adversarial system - the recent use of victim advocates and testimony at sentencing from victims and their families, which seems to be cathartic at some measure but also a kind of ugly irony in the midst of truly adversarial atmosphere. Minow - Many people offer the victim witness statement as the 'gottcha' cause they know I'm against that, but isn't it a fulfillment of all that I've talked about voice, participation, etc. Inside of a system where the focus is the culpability of the actor, to then alter the range of the punishment based upon the availability of articulate, compelling and appealing victims is to throw a randomization into the process that is completely unfair. So people who have studied the use of victim statements are quite effective in showing that those people who can come forward as victims who are white, middle class, are going to be much more successful. The victims who are able to portray themselves as victims in the form that the conventional wielders of power are going to find compelling will be much more successful. There is no one-to-one correspondence between this relationship and the action of the wrongdoer and the punishment that follows. Should there be a forum for victims? Absolutely. It is an expose of the limitations of the criminal justice system that there is such a need for victims to be heard and for victims to have their pain acknowledged.

Last comments: This has been just a terrific conversation. One o the people in my journey who has affected me a lot in thinking about these issues is this woman Jadranka Cigelj, a Bosnian woman who was put in a horrible concentration camp, repeatedly raped, suffered enormous humiliations and literally crawled her way back home after she was released. She who had been trained as a lawyer was one of the organizers of the movement to push for indictments for rape as a crime against humanity. She did so by collecting stories. She described how she'd initially been filled with hatred and a desire for revenge and this began to change when she met this 86 year old woman whose 14 members had all been murdered and this woman had to bury them with her own hands. She said to Jadranka Cigelj how could you hate these people who are so repulsive? That began her work and it began her change. One day you wake up and the hatred has left you and you feel relieved because hatred is exhausting. You say to yourself I am not like them. The struggle of all of this, is to figure out what a society could offer to people so its more possible to come out that way.

This seminar series is part of the Brandeis Initiative in Intercommunal Coexistence, made possible by a generous grant from the Alan B. Slifka Foundation.

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