a different kind of justice: dealing with human rights violations in transitional societies

A Different Kind of Justice:Dealing with Human RightsViolations in Transitional SocietiesDavid Little”

The Problem

“There is no more important new subject on the international agenda,” writes

Washington Post columnist Jim Hoagland, “than the necessity of balancing the

human need for justice and retribution with the state’s interest in stability and rec-onciliation.”l The challenging task of coordinating retribution and reconciliation

is most acute, of course, in the so-called transitional societies, those societies mov-

ing from authoritarianism, and often violent repression, to democracy. How are

these emerging democracies, faced as they are with demands for individual

accountability on the one hand and social harmony and tranquility on the other,

to deal with serious human rights offenders among their members?zThis question has provoked considerable controversy. One side argues that

retributive justice, or “deserved requital, “ is not opposed to but is in fact a pre-

condition of reconciliation, or the restoration of social harmony. Some opponents

of the South African Truth and Reconciliation Commission, for example, claim

that the commission’s offer of amnesty for full disclosure of wrongdoing during the

apartheid period actually impedes rather than encourages social amity, because it

denies “the human need for justice and retribution” and thereby leaves a trail of

resentment and frustration.Retribution, claim certain theologians among the critics, is not the same as

revenge. Revenge is the desire for retaliation acted on without benefit of impar-

tial adjudication, and therefore tends either to be excessive or to provoke an

.......... ............ ..... . . . ........ .......... .... ............................................................* The opinionsexpressedhereare my own and do not necessarilyreflectthe viewsof the UnitedStates

Institute of Peace. I would like to express special thanks to William Stuebncr of the U.S. Institute of Peace

for hishelp,particularlyregardingthesectionontheproposedTruthandReconciliationCommissionofBosniaandHerzegovina.I amalsogratefulto DavidCrockerforthoughtfullyreviewinganearlierdraftof this essay. Needless to say, I bear full responsibility for the use made of their suggestions.

1 Jim Hoagland, “Justice for All,”Wasbitrgtorr Post, April 19, 1998, p. C7.

2 See Neil J. Kritz, cd., Transitional Justice: How Emerging Democracies Reckon with Former

Regimes (Washington, D. C.: United States Institute of Peace Press, 1995), 3 vols., for the most com-

prehensive compilation of material relevant to this problem.

66 David Little

unending cycle of mutual reprisal. By contrast, retribution is determined andadministered according to judicial rules and procedures. Because it is objective in

that way, retribution is in accord with God’s justice, these critics say. “The [right-

eous] wrath of the [victims against their abusers] reflects the [judicious] wrath of

God.”3

Furthermore, widespread local and international consensus exists in regard

to countries like Bosnia and Rwanda that there can be no reconciliation without

retribution, at least so far as the most serious offenders are concerned. The inter-

national war crimes tribunals established for those places for the purpose of pun-

ishing some wrongdoers are obviously an expression of that sentiment.

On the other hand, it is often argued, equally vigorously, that retribution

and reconciliation are opposed. In one of its publications, the Mennonite

church draws a sharp evaluative distinction between retributive and restorative

justice, describing them as comprising, respectively, old and new paradigms.4

The document depicts the contrast as follows: According to retributive justice,

crime is an offense against the state. The objective is to establish “offenderaccountability, ” determined with reference to past violations and in a way that

ignores both the victim and the broader moral, social, and economic context inwhich crime occurs. The primary purpose of punishment is to isolate the

offender from society and to inflict suffering in proportion to the crime.

Incidentally, the Mennonites’ emphasis on the way retributive justice ignores

the victim is powerfully confirmed by the eminent philosopher of law David

Lyons: “The aim of restoring a moral balance between the wrongdoer and the

victim is not generally served by systems of [retributive] punishment, which

concentrate on making wrongdoers suffer and typically show little concern for

compensating victims.”5

Restorative or remedial justice, by contrast, defines crime interpersonallyand focuses on future reconciliation and the restoration of relations between vic-

tim and perpetrator, and with the society at large. The emphasis of the

Mennonites is on making amends and on community service, wherein the com-

munity itself becomes a “facilitator in the restorative process. ”

There are other, more practical arguments that reject retributive justice in

favor of reconciliation. Most transitional societies are not, it is claimed, like

. .... .. . ..... . . ........ .... .... ................. ........... ..... . .. .......................................... ... ...................................................................3 Lyn S. Gray bill, “South Africa’s Truth and Reconciliation Commission: Ethical and Theological

Perspectives,” Ethics & International Affairs 12 (1998), p. 59, quoting Wills Boesak.

4 New Perspectives on Crime and Justice, Mennonite Central Committee Victim OffenderMinistries Program, no. 4 (September 1985), appendix.

$ David Lyons, Ethics and tbe Rule of Law (New York: Cambridge University Press, 1984),

p. 147.

A DIFFERENT KIND OF JUSTICE 67

Bosnia and Rwanda, for which internationally administered Nuremberg-type war

crimes trials make sense. More commonly, as in Latin America or Eastern Europe,countries confronting offenses associated with a discredited past retain their sov-

ereignty, and therefore are inclined to resist the imposition of international tri-bunals. This state of affairs would of course be modified under the jurisdiction of

the newly proposed International Criminal Court, although it remains to be seenhow effective the new court will be in expanding and asserting its authority over

against the doctrine of state sovereignty so persistently defended by the United

States and a few others. Moreover, many offenders and their sympathizers typi-cally continue in power, and are therefore able either to obstruct judicial pro-

ceedings or to annul their effects. “Without the guarantee of amnesty the

National Party [in South Africa] would have walked out of [post-apartheid] nego-

tiations altogether,”6 and in Argentina many military offenders were eventually

excused from sentences rendered against them. Finally, even for countries such as

Bosnia and Rwanda where it may be possible to deal retributively with some

offenders, it will simply not be possible to process all of them. The “legacy ofwrongdoing” must be confronted in other ways.

For all these reasons, it is argued, “a different kind of justice’” ought to be

pursued, one that is “parallel and complementary”g to normal judicial proce-

dures. The recommendation is that the alternative system should be less conven-

tional and vindictive, and more experimental and restorative.

Retribution and Reconciliation: Some General Reflections

A FAMILIAR DEBATE

The above controversy is but a rerun of an old philosophical debate betweenutilitarians and their opponents over the proper theory of punishment.

Classically, the utilitarian thinker Jeremy Bentham attacked the idea of ret-

ributive justice along the lines of the Mennonite document cited above.

Retribution, he asserted, is fundamentally anti-social. It looks to past individ-

ual offenses and to evening scores, rather than to the future and to increasing

overall social benefit and harmony. The primary concern should be to deter

............. ........................................ ............................ . .. ...... . .... . ........ . ... ...... . . .................... .—. .~ Gray bill, “South Africa’s Truth and Reconciliation Commission,” p. 61.

T Ibid., p. 43.

s A phrase suggested by William Stuebner, program officer at the U.S. Institute of Peace, who is

assisting the Bosnian government in developing a new nationwide truth and reconciliation commis-

sion for Bosnia and Herzegovina.

68 David Little

,,

crime and reform criminals, not to impose penalties for individual wrongdo-

ing as an end in itself.

For Immanuel Kant, and other critics of utilitarianism, dwelling on the

future and on general social welfare disregards the essential ingredients of crime,

namely personal responsibility and accountability. If utilitarians had their way, it

would be acceptable to punish innocent people (say, the cherished wife or child

of a potential criminal) so long as such a policy effectively deterred crime or

reformed criminals. In Kant’s view, that practice is unthinkable. Punishment is

irreducibly “backward-looking,” “offender-specific,” and strictly punitive, in the

sense that it should inflict upon wrongdoers suffering proportional to the amountof suffering they caused their victims. In that way “the punishment fits the

crime. ” Any other approach is profoundly unjust.

Kant’s point is important, since the idea of individual legal responsibili-

ty and accountability underlies the rule of law and human rights. Whatever the

other shortcomings of the retributivist position, the provisions in the human

rights documents for such things as due process, equality before the law,

the right of everyone “to recognition everywhere as a person before thelaw,” and absolute protection against retroactive laws—however socially ben-

eficial laws of that sort might prove to be—are all aimed at assuring, as funda-

mental to human rights, that individual offenders get neither more nor less than

they deserve.At the same time, there is a serious problem with the standard account

of retributive justice, which the utilitarian position helps to highlight. By

emphasizing the fact that punishment is backward-looking, offender-specific,

and strictly punitive, the retributivist position does utterly ignore the victim.

A modification, more compatible with the future-looking, reformist outlook

associated with utilitarianism, would be to require the offender to provide

compensation or restitution to the victim, something that would have the

direct effect of “making amends” for the injury or loss caused by the offense.Since this kind of “remedial justice” involves paying a compulsory penalty

for a past act, it is still partially retributive. On the other hand, since the

penalty is a remedy aimed at benefiting the victim, it is simultaneously

“restorative.”

THE IDEA OF RECONCILIATION: CULTURAL AND RELIGIOUS BACKGROUND

One of the most interesting aspects of this discussion is the way that a word like

“reconciliation,” together with some of its theological connotations, has of late


gained such widespread currency in political discourse. As a matter of fact, themetaphysical and religious background is important, and affects the way the term

gets understood in politics.

In defending the approach of the South African Truth and ReconciliationCommission (SATRC) toward wrongs committed in the name of apartheid,

Bishop Desmond Tutu invokes the African notion of ubwrtzc

Ubrortu says I am human only because you are human. If I undermine yourhumanity I dehumanize myself. You must do what you can to maintain this

great harmony, which is perpetually undermined by resentment, anger, desirefor vengeance. That’s why African jurisprudence is restorative rather thanretributive.9

For Tutu, reconciliation as ubtmtu explicitly excludes retribution.And Walter Wink, a Christian theologian and New Testament scholar who

brings his perspective to bear on the questions of “transitional justice,” describesthe meaning of reconciliation in the following way:

Reconciliation . . . requires that I and the other person from whom I have been

separated by enmity,mutuallyforgiveeach other and walk into a common futuretogether.Forgivenessis thus a componentof reconciliation,but only a first step.We may forgive our enemies in our hearts, but reconciliation requires that we

pick up the phone or meet face to face and try to work thingsout.l”

The connection Wink draws between reconciliation and forgiveness is an impor-

tant one, calling attention to the expressly New Testament connotations that arefrequently attached to the idea of reconciliation.ll The emphasis on a Christian

understanding of forgiveness as a precondition for reconciliation would alsoappear to rule out retribution.

At the same time, the interpretations of people like Tutu and Wink do notcompletely resolve the role of retributive justice. For example, Wktk sometimes says

that forgiveness and reconciliation are one thing and retribution another. At other

times, howeve~ he implies that forgiveness and reconciliation may include retribu-

tive justice. When listing the “rules of thumb” transitional societies should follow

in addressing “issues of reconciliation,” Wink writes: “At least leading architects of

9 Cited in Gray bill, “South Africa’s Truth and Reconciliation Commission, ” p. 47.10Walter Wink, When the Powers Fall: Reconciliation in the Healing of Nations (Minneapolis:

Fortress Press, 1998), p. 14.II see Dona]d w. fjhriver, ArI Ethic for Enemies: Forgiveness in Po/itics (New York: Oxford

University Press, 1995).

70 David Little

w

the policy of disappearances, murdeq and torture, should be prosecuted.”12

It does seem clear that the New Testament idea of forgiveness and rec-onciliation stands in some tension with the notion of retribution, as we have

sketched it. Take, for example, the Parable of the Unforgiving Servant (Matt.

18:23-35):

Thereforethe kingdomof heavenmaybe comparedto a kingwho wishedto settleaccountswith his servants.When he beganthe reckoning,one was broughtto himwho owedhim ten thousandtalents;and as he couldnot pay,his lord orderedhimto be S014 with his wifeand childrenandall that he had, andpaymentto be made.So the servantfell on his knees,imploringhirq “Lord,havepatiencewithme, andIwill pay you everything.”And out of pity for him the lord of that servantreleasedhimandforgavehimthe debt.But that same servant, as he went out, came upon one

of his fellow servantswho owed him a hundreddenarii;and seizinghim by thethroat he said, “Paywhat you owe.” So his fellowservantfell downand besoughthiq “Havepatiencewithme,andI willpayyou.” He refusedandwentandputhimin prisontill he shouldpaythe debt.When his fellowservantssawwhat had takenplace, theyweregreatlydistressed,and theywent andreportedto theirlord all thathad taken place. Then his lord summonedhim and said to him “You wickedser-vant! I forgaveyouall that debt becauseyou besoughtme; andshouldyounot havehad mercyon your fellowservan~as I had mercyon you?” And in angerhis lorddeliveredhimto the jailers,tillheshouldpayall hisdebt.So alsomyheavenlyFatherwill do to everyone of you, if you do not forgiveyourbrotherfromyour heart.

Central to the act of forgiveness in this parable is the annulment of both the

debt the first servant owed the master, and the punishment (being sold or impris-

oned) that is taken to apply to those who default on their loans.lj Indeed, one

meaning of apkvni—the Greek word “to forgive’’—is to “cancel,” “remit,” or“pardon,” while a related meaning is to “give up” or “let go, ” suggesting a radi-

cal alteration of the relationship between the forgiver and the forgivee.*4 It is of

course interesting that retribution reenters the picture after the first servant fails toreplicate the forgiveness he had earlier received from his master. Nevertheless, the

obvious moral of the story is that retribution, if it occurs at all, is divine or super-natural in character, and not temporal, a position generally maintained in Jesus’

12wink, When tbe Powers Fall, p. 53.13However, it is interesting that the punishrnent—being imprisoned—is tied to restitution—”till

he should pay all his debt.”M see the entrY for aphkrniinWilliam F. Arndt and F. Wilbur Ghgrich, A Greek-English Lexicon

of tbe New Testament and Other Early Christian Literature (Chicago: University of Chicago Press,

1957), pp. 12 S-26.


teachings.15 In the verses immediately preceding the Parable of the Unforgiving

Servant, Jesus enjoins his followers to forgive offenders “seventy times seven.”16

It must be remembered, of course, that however much Jesus’ emphasis on

forgiveness and supernatural judgment may exclude the idea of earthly retribu-

tion, the idea is not excluded from other parts of the New Testament. The First

Letter of Peter explicitly states that mundane governors have been “sent by [God]

to punish those who do wrong and to praise those who do right” (2:13-14), and

a similar thought appears in Paul’s Letter to the Remans (13:1-5). Just how theconcepts of forgiveness and temporal retribution, which exist side by side in the

New Testament, are to be harmonized is an abiding perplexity for Christians.

“A DIFFERENT KIND OF JUSTICE”

One possible compromise might be to reexamine the notions of forgiveness and rec-

onciliation as exemplified in the New Testament, and to deduce guidance from themconcerning the problems of justice faced by transitional societies. The objective here

is modest. It is to analyze the New Testament parable in order to try to clarify the“logic” of these concepts to see if they match and possibly illuminate our common

understanding of them, whether we are Christian or not. The hope is that we may

thereby better grasp the connections and differences between retributive and restora-

tive justice so as more clearheadedly to put the notions to work in practice.Toward that end, I propose the following model, which, as illustrated by

the Parable of the Unforgiving Servant, breaks the idea of forgiveness down into

its component parts, shows their relevance to reconciliation, and then (possibly)provides a basis for a notion of “restorative justice,” which retains some but not

all of the elements of retributive justice.An act of forgiveness, it appears, consists of five conditions:

1. A transaction between at least two people (forgivedforgivee)

2. A common acknowledgment between them regarding:

a. The “truth” concerning wrongdoing and responsibility

b. A fitting penalty

3. Contrition (guilt) on the part of the forgivee4. A merciful act by the forgiver: annulment of 2b

5. Obligation of the forgivee...—.—

If 1am~~=t~f”lto .4rntsassadorSamuel W. Lewis for emphasizing this point in a lively discussion

of an earlier version of this paper at a meeting of the Forum on Religion and Foreign Policy, May

28, 1998, in Washington, D.C.16Matt. 18:21-22.

72 Dauid Little

The implication of this model is that if all five conditions are satisfied, then a state

of reconciliation is achieved—in terms of the parable, between God and humanbeings, as well as among human beings themselves.

It is true that one crucial feature of retributive justice is eliminated by the

forgiver’s merciful act (4), namely, the annulment of the “fitting penalty” (2b). At

the same time, the features of personal responsibility and accountability for wrong-

doing, which Kant, as we mentioned, believed to be so central to the idea of retri-

bution, are still present (2a and 3). Clearly, without common agreement between

both parties that an offense has been committed-a “truth” condition, as we maycall it—and that the forgivee is indeed accountable for having committed the

offense, the act of forgiveness (and thus the state of reconciliation) cannot be com-plete. It is understood, of course, that the common agreement concerning responsi-

bility for wrongdoing is arrived at consensmdly, and in that sense informally.

Condition 5 is of special importance, though it is sometimes overlooked inthinking about forgiveness. It imposes obligations upon the forgivee, on pain, in the

parable, of reincurring the “fitting penalty” if the implied requirements are not ful-filled. Bracketing for the moment the threat of retribution that hangs over the head

of the first servant, there still remains “a different kind of justice” that is entailed inthe very logic of forgiveness itself. It is a due (or just) requirement to create new rela-

tionships by treating others as one has been treated. This is something the first ser-

vant should have recognized without prompting, and, so to speak, have voluntarilyimposed upon himself. Given that the servant willingly accepted the generosity of the

masteq he is thereby obligated to extend similar generosity to others comparably sit-

uated, and to do it in a way that mirrors the master’s generous spirit, namely, to act

“from [the] heart.” Failing that crucial condition, the whole relationship between the

master and the servant is destroyed, as the conclusion of the parable makes clear.It may not be stretching things to conclude that an idea of restorative jus-

tice-the obligation to repair relations by voluntarily benefiting others as one hasbeen benefited—finds some foundation in condition 5 (together with 2 and 3).

The Model Applied

THE SOUTH AFRICAN TRUTH AND RECONCILIATION COMMISSION

The SATRC self-consciously favors restorative rather than retributive justice, asBishop Tutu’s comment on z&o.@, cited earlier, demonstrates.17 The “reconcilia-. . .... . .. . . ... ...................... ....... .... .. .. . .. ... .......................... . .. ... ....................... ............................

171am&aWingin thissection on materials pertinent to the work of the TRC that have been cir-

culated on the condition that there be no attribution.


tion” mentioned in the commission’s title rests on the idea of amnesty, or the

annulment of a “fitting penalty” for wrongdoing (4), for many (though not all)offenders who come forward and testify before the commission.

Moreover, there is a strong emphasis upon the obligation of confessed

offenders voluntarily to contribute to future-oriented social “reparation,”

which means restoring relations between offenders and victims, as well asrepairing the broader social and institutional fabric. In short, conditions 4

and 5 of our model-conditions of great importance to the idea of forgive-

ness—are accommodated by the SATRC. A submission by the South AfricanCatholic Bishops’ Conference to the Ministry of Justice prior to the estab-

lishment of the SATRC illustrates the concern for condition 5: “While the

state may have to bear the major financial burden of compensation for vic-tims, thought should be given to asking the perpetrators of crimes to con-

tribute to reparations. This could include direct compensation to the victims,

contributions to the Reconstruction and Development Programme or com-

munity service, where feasible. ”18

It is worth noting that the several “forgivee obligations” recommended by

the Catholic Bishops’ Conference-compensation to victims, contributions to

reconstruction and development programs, and community service-variouslyrepresent a combination of restorative and retributive justice. The obligations are

restorative because they are aimed at “repairing relations” in the future, ratherthan simply inflicting suffering upon offenders for past violations. Moreover, the

obligations are explicitly nonretributive in two senses: They represent alternatives

to the normal or “fitting penalty” for wrongdoing, which is typically annulled bythe SATRC’S grants of amnesty, and they are to be assumed voluntarily, rather

than compelled.At the same time, the retributive elements, especially 2a—the “truth con-

dition” concerning personal responsibility for wrongdoing—that are retained in

our model of forgiveness are also accommodated by the SATRC. The idea of

impunity or “blanket amnesty” was explicitly rejected in favor of what is called

“accountable amnesty. ” The act establishing the SATRC stipulates that, among

other things, amnesty may be granted only if specifically requested by individ-

uals who are willing, within a limited time period, to make a full and normal-ly public disclosure of their crimes. Public and voluntary acknowledgment of

personal wrongdoing is indispensable to the annulment of a penalty, and to theprocess of consensual truth gathering. Furthermore, compensating the victim

directly and contributing, to some degree, to social welfare programs or doing

. ..... ........ . ....................... ......... .................. ...... . ... ............. ........... ............. . ................... ......... . . .18 A public statement cited in the circulated materials.

74 David Little

community service all retain aretributive character inthatthey are based ona

backward-looking, offender-specific appraisal of what offenders “owe” as a

result of their wrongdoing. Were these requirements compelled as an alternative

penalty, rather than “recommended,” as in the case of the SATRC, they would

reflect a still stronger retributive cast.

Occasionally, the condition of personal contrition (3) is satisfied, and istied, as would be hoped, to fulfilling condition 5. Walter Wink cites one moving

instance, taken from the records of the SATRC, of an individual who both con-

fesses his offenses and goes onto commit himself voluntarily to making amends

for them (conditions 3 and 5):

A police officer who masterminded the butchering of a number of families in

an attack on a rural villagestood and faced his victims: “I can never undo what1 have done,” he said. “I have no right to ask your forgiveness, but I ask thatyou will allow me to spend my life helping you to rebuild your village and putyour lives together.“19

There is, in addition, the assumption that the overall objective of national

unity and reconciliation can be achieved only by exposing the grim truth about

gross human rights violations during the time of apartheid. For one thing, victims

get a chance to acknowledge their hurt and anger. For another, the society facesup to its past, the better to prevent a recurrence.

Nevertheless, not all of the features of our model of forgiveness are by anymeans perfectly realized in the work of the SATRC. Though there are occasional

examples of personal contrition, such as the police officer mentioned above, these

are apparently rather infrequent. The commissioners, and particularly Bishop

Tutu, may publicly lament the offenses luridly disclosed before the commission.

But that is not the same as contrition on the part of the offenders themselves,

something that in any case it is impossible to impose or require. Consequently,

contrition, one of the key conditions of “a different kind of justice,” would

appear to be in short supply.

Nor is there anything like a comprehensive annulment of penalty for all

South African human rights offenders. The SATRC Act explicitly refuses amnesty

to perpetrators of the most heinous crimes, and, of course, offenders who do not

willingly come forward to testify before the commission are subject to normal(retributive) prosecution. Restorative justice is so far at most a provisional and

supplementary system within South Africa.. .. . . ..... ... .. . ................................ .. ............. .. .. . . . ........ ......................... ... . . .............................................................

19W]nk,when the Powers Fall, p. 49.


Finally, the SATRC has not been able satisfactorily to encourage com-

pliance with condition 5, namely, the voluntary fulfillment of the forgivee’s

obligations to undertake the responsibilities for repairing relations by help-ing to compensate victims, by contributing to reconstruction and develop-

ment programs, or by doing community service. Nor has there been muchheadway on the obligations of the community at large to provide material

restoration to the victims of the human rights abuses during the time ofapartheid.

In short, the SATRC’S experience is a quite imperfect approximation of

our model of forgiveness. It is obvious that “a different kind of justice” has

not been comprehensively substituted for a retributive system. That fact sug-

gests that forgiveness, ideally conceived, is not readily achievable as a general

social policy for transitional societies, and therefore should, under such con-

ditions, be regarded with considerable reserve. There is perhaps too much easy

talk about forgiveness as a strategy for dealing with the problems of transi-

tional societies.At the same time, our model of forgiveness is by no means entirely

irrelevant to the experiments concerning “truth and reconciliation” in tran-

sitional societies such as South Africa, and to the efforts to work out a newkind of justice. We showed that the work of the SATRC does after all con-

stitute an approximation of the model, however imperfect it may be. For onething, certain standard retributive concerns, such as an agreed-upon “truth”

about wrongdoing, as well as an acknowledgment of personal responsibility

and accountability for offenses committed—something of great concern tothe SATRC—are not alien to the notion of forgiveness. At the same time, the

procedure for truth gathering is consensual rather than formally determined,as in a judicial context. For another, the emphasis on “repairing” or “restor-

ing” relations between victim and offender, rather than on punishing theoffender regardless of the victim, is common to both the idea of forgiveness

and the objectives of the SATRC. Finally, the prospects of setting conven-tional notions of punishment aside in the form of amnesty or other innova-

tions, at least for certain groups of offenders, and of considering questions

of the truth about wrongdoing outside the context of judicial procedure andpunishment, are fundamental to the idea of forgiveness, as well as to the mis-

sion of the SATRC.

We may conclude that although the concept of forgiveness is not perfectly

translatable into policies regarding transitional justice, it is nevertheless partially

and experimentally relevant in some very interesting ways.

76 David Little

THE TRUTH AND RECONCILIATION COMMISSION OF BOSNIA AND HERZEGOVINA

‘1

A second example of the partial and experimental way in which the idea of

forgiveness relates to questions of transitional justice is the proposal for theBosnia and Herzegovina Truth and Reconciliation Commission (BHTRC),

which was developed by local and other officials and experts, and supportedby the U.S. Institute of Peace.zo

The design of the new commission is both similar to and different from

that of the SATRC. As in South Africa, the proposed commission would in noway be a substitute for the applicable judicial systems—in Bosnia and

Herzegovina the Hague Tribunal, as well as relevant domestic courts. These con-

ventionally retributive courts would continue to prosecute gross offenders, and

the commission would perform no more than a “complementary and parallel”function. Moreover, again as in South Africa, a central objective of the BHTRC’S

work would be to compile a true account of the wrongdoing that occurred under

hostile conditions.

On the other hand, unlike the SATRC, the commission would not have the

authority to grant amnesty, and it would not focus on the offenses of individual

perpetrators. Rather, it would “focus on victims and on what actually happened

to people during the conflict, “ in order to give “some kind of public acknowl-edgement of. . . victimization. ” That acknowledgment might take concrete form

such as influencing “who should receive compensation for their suffering, ” but it

would not involve conventional judicial punishment.21 Beyond that, the BHTRC

would substantially expand the mission of truth gathering by calling attention notonly to offenses and atrocities, but also to the acts of people “who maintained

their humanity and protected neighbors of other ethnic and religious groups from

abuses. “21

Indeed, as put forward in an official statement of purpose, the fundamen-tal concern of the BHTRC with truth gathering, together with its novel approach

and the reasons for its concern, is quite distinctive:

Beyond prosecution, the establishment of a historical accounting of abusessuffered during the war can contribute to the process of healing and reconcil-iation. Under current arrangements, however, the work of three [ethnically

.. ... ...... . . . .. . . . ..... ............................. ..... . ....................... ................. .. .“_.zoThe following description is based on materials kindly supplied by my colleagues Neil J. Kritz

and William Stuebner.21Wdliam Stuebner, “No Amnesty for Crimes against Humanity,” English summary of an inter-

view on the BHTRC in Svijet, Bosnia and Herzegovina, July 21, 1998.lZ “Truth and Reconciliation Commission of Bosnia and Herzegovina, ” United .$WesInstitute Of

Peace Fact Sheet.


separate] war crimes commissions . . . risks producing three conflicting ver-

sions of truth and history. . . . One joint truth commission should be estab-lished in Bosnia and Herzegovina, including appropriate membership from

each group and an international chairperson, to provide a collective forum for

victims on all sides of the conflict and to establish one consensus historyregarding these painful matters.Z3

In particular, this victim-oriented approach would also be more broadly focusedthan is typical of many truth and reconciliation commissions. It “will address

matters more related to the societal and cultural context of the abuses commit-

ted,” having special pertinence to “a country where nationalistic propagandastill ensures that each ethnic group is cognizant only of its own victims of these

abuses. “24

First, that means that the commission would “analyze and report notsimply on individual abuses, but on the broader context in which they

occurred, examining in particular the structural elements of government, ofthe security forces, and of other elements in society which made those pat-

terns of violation possible in the first place. ” Accordingly, it “would shine

the spotlight on whole sectors that will never be the focus of criminal pros-

ecution, ” such as the media, the judiciary, intellectuals, or religious institu-

tions.2sSecond, it means that the commission would become the vehicle for over-

coming the distortions and misrepresentations characteristic of “special-interesthistory,” and begin to work its way toward a common, consensual account of the

causes and character of wrongdoing before and during the war in that region. At

present, the accounts of the Serbs, the Croats, and the Bosniaks are sharply at

variance: Each community emphasizes only its “own victimization and . . . suf-

fering . . . at the hands of others. “26

In July, for example, on the TV-BiH talk show, “Argumenti,” a woman in the

audience stated that, because she had been in the Sarajevo neighborhood ofGrbavica for two weeks in May 1992, she already knew the entire truth

about the war. In Republika Srpska, many people are sure, based on mediareporting, that the stories of mass murder at Srebrenica are fantasies woven

by Bosniak propagandists and their western journalist allies. And, of course,

23 Ibide

~~ Neil J. Kritz, “Is a Truth Commission Appropriate for the Former Yugoslavia?” (paper pre-

sented at the International Conference on War Crimes Trials, Belgrade, November 7-8, 1998), p. 2.~ Ibid., pp. 2-3.

26 Ibid., pp. 1-3.

78 David Little

-{

Croats in West Mostar “know” that their soldiers only fought a defensivewar against attack first by the “chetniks” and later by the “Muslim funda-

mentalists. ” These varied notions of “truth”. . . are, in many ways, moreinsidious and likely to lay the seeds for future revenge-taking than knowing

nothing at alLz7

In some ways, the pertinence of the forgiveness model is less direct and

more extended in the Bosnian case than in the South African case. The SATRC

stays closer to the idea of an individual, person-to-person transaction with

which we most naturally associate forgiveness-condition 1 of our model. It

attempts to bring perpetrator and victim into contact with each other in a set-

ting where there is at least some opportunity for the annulment of penalty (4),

and which is designed to encourage common acknowledgment of the truth

concerning wrongdoing and responsibility (2a), contrition on the part of the

offender (3), and a desire on the offender’s part to assume an obligation torestore or repair relations (5). The fact that the SATRC has not been perfectly

successful in achieving the ideal should not blind us to the relevance of ourmodel.

By contrast, the BHTRC, in general, turns away from such person-to-person transactions in favor of a broader cultural and social-institutional

focus. Here the objective is explicitly not to encourage one-to-one instances of

reconciliation, since attention will largely be paid to the abuse of victims

rather than the offenses of individual perpetrators. And since the individual

perpetrator is effectively left out of the equation, there is no provision for fos-tering individual contrition for crimes committed, nor for personally assuming

obligations to repair relations.

On the other hand, the conditions of forgiveness are nevertheless rel-

evant to the work of the commission. The most obvious point of connection

is the emphasis in the commission’s mandate on undertaking a “process ofhealing and reconciliation” outside the conventional judicial context.

Retributive punishment is not completely rejected—the judicial process is

assumed to have its place in the form of the Hague Tribunal and relevant

domestic courts. However, the work of the BHTRC itself is far removed from

that, and has been carefully designed to retain as few judicial elements as

possible. In particular, the question of a “fitting penalty” for individual

wrongdoing (2b) has been bracketed, if not annulled (4), in defining theBHTRC’S mission.

27Ibid., p. 2.


Beyond that, the concern with a common, consensual acknowledg-

ment among previously estranged parties of the truth concerning wrongdo-

ing (2a) assumes a key place in the work of the commission. The idea of a“consensus history regarding these painful matters” necessarily implies, in

turn, a new understanding among the three communities of shared guilt orcontrition (3), an attitude that would replace the stubborn belief in the inno-

cence and victimhood of one’s own group that accompanies “partisantruths. ”

Finally, there is clearly the hope implicit in the design of the BHTRC that

the development of a shared and consensual all-Bosnian account of wrongdoing

(and rightdoing) will eventually prompt members of all three communities to

begin to assume obligations aimed at repairing and restoring the divided and hos-

tile ethnic relations that still pervade postwar Bosnian society (5).

Conch4sion

We may conclude both that the ideas of retribution and reconciliation pull in

different directions and that the relationship between them is more compli-

cated than at first might appear. Certain ingredients of retribution, especially

the infliction of proportional suffering for wrongdoing, are alien to reconcil-iation, when reconciliation is thought of in connection with forgiveness. On

the other hand, if our analysis of forgiveness is correct, then other retributiveelements, such as personal accountability for wrongdoing as well as the will-

ingness to assume responsibility for certain “forgivee obligations, ” are com-mon to retribution and reconciliation. Under reconciliation, however, the pro-

cedure for arriving at those conclusions is typically consensual and voluntary,rather than formal and externally imposed as in a conventional judicial set-

ting. This fact suggests that the ideas of retribution and reconciliation, while

different, are not so systematically opposed to each other as has sometimes

been believed. We may also conclude that there is good reason to suppose that

however far transitional societies go in instituting “restorative justice,” theyare unlikely to abandon the conventional form of retributive justice for all

classes of offender.Still, the distinctions and tensions between retribution and reconcilia-

tion are also important, most dramatically in transitional settings. For many

reasons, the “logic” of forgiveness does appear to intrude upon these settings

and to have the effect of dislodging from the mind its often consuming fasci-

80 David Little

nation with retributive punishment. If retributive punishment cannot be dis-pensed with altogether, it can nevertheless be contained and supplemented by

a different kind of justice, and there are signs that this is already beginning to

happen. This is perhaps one of the most interesting lessons of the experience

of the transitional societies.

a different kind of justice: dealing with human rights violations in transitional societies

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