12
Mar
09

Book Review – Between Vengeance and Forgiveness

How do nations or societies respond after periods of mass violence, indescribable episodes of systematic torture, rape and slaughter of minority or marginalized populations, or even ethnic cleansing and genocide?  Historically, of course, the most common response of populations freed from such oppression has been retaliation in at least equal measure, if not more profoundly violent and obscene in character. Despite the world, in the twentieth century, experiencing atrocities of more magnitude and frequency than ever before, Martha Minow somewhat optimistically details several societal responses aimed at seeking collective healing and reconciliation. After discussing the poles of vengeance and forgiveness, Minow expounds on the strengths and limitations of legal remedies, truth commissions and efforts at reparation, before finishing with other possible efforts for reconciliation. While approaching the topics from the perspective of societal health, her use of very individual examples of trauma, discussions about each approach’s implications for personal healing and suggestions for more integration of psychological care, help avoid any suspicion that she is espousing a utilitarian methodology of collective recovery at the expense of the individual well being of victims.

SYNOPSIS

Seeking to explore the nuances between the extremes, Minow begins with the examination of two dichotomies that have significant bearing on the response to mass trauma — remembering-forgetting and vengeance-forgiveness.  Reconciliation of victims, perpetrators and bystanders requires seeking a “path between too much memory and too much forgetting.” (p.4) Sweeping the atrocities under the table denies the reality of the victims experiences and leaves the door open for the continuation of oppressive structures, while wallowing in the aftermath of trauma exacerbates the wounds, delaying or preventing healing while also increasing the likelihood of equally oppressive reprisals against the perpetrators. Memory, revealed in disclosure of truth, causes bystanders to recognize the reality of events and to “face their own choices about action and inaction.” (p.146)

Vengeance, rather than solely negative, is “the wellspring of a notion of equivalence that animates justice.” (p.10)  Minow points out that the danger of vengeance, in combination with its all too common companion hatred, is the escalation of retaliatory violence. Retribution, through the rule of law, tames vengeance with proportionality by transferring the roles of blaming and punishing out of the hands of the victim and placing them in the legal system. (p.12)  The problem exists, however, that the more heinous the atrocity, the more likely it is that the proportional response would be unconscionable.  Forgiveness, in its capacity to free the victim of hatred and view the offender as still human, can be a viable alternative. When a society forgives in the form of amnesty or pardon, however, it more resembles institutionalized forgetfulness – the atrocity, being publicly ignored, serves to fester deep seated resentment and increases the likelihood of violence. (p.20)  Ultimately, forgiveness cannot be mandated by society since the capacity to grant forgiveness resides wholly with the individual victim. (p.20)  Public officials can call for forgiveness, but announcing societal forgiveness translates into official or public amnesia, denying the truth- seeking that true reconciliation requires. (p.16,17)

In exploring the middle ground between the extremes of vengeance and forgiveness, Minow continues by discussing legal solutions, truth commissions and reparations as societal responses. Decades after the Nuremburg and Tokyo trials, international tribunals and domestic courts sought to use those precedents in prosecuting perpetrators of mass atrocity with varying degrees of effectiveness and integrity. Despite the values of trial processes in that they disclose limited truths, “cool vengeance [and] interrupt the vicious cycle of blame and feud” (p. 26), legal proceedings entail several shortcomings. In many instances perpetrators were judged against ethical norms that were retroactively given the status of international law. (p.32)  Political considerations regulate whether or not trials occur, based sometimes on the resolution of other conflicts or negotiated settlements. (p.39)  Trials of the vanquished by the victors, being particularly one-sided, are also politicized and open to charges of gross injustice. (p.30)  Selectivity is a third critique Minow levels against trials. In this instance, due to limited resources and time, only minimal numbers of perpetrators, among them many times only relatively minor players, actually stand trial. While generally trying to steer away from popular cynicism about the applicability of legal proceedings, Minow nonetheless quotes Tina Rosenberg’s statement, “[t]rials, in the end, are ill suited to deal with the subtleties of facing the past.” (p.51)

Relying heavily on the experiences of the South African TRC, among others, Minow seems to hold more hope for reconciliation through the use of truth commissions. Trading amnesty for truth-telling, rather than promoting systemic amnesia, has far greater value than courts in revealing the wide-ranging instances and effects of atrocities. (p. 59)  Besides the potential effects of identifying perpetrators and vindicating the physical and emotional realities of the victims, truth committees provide for the fuller participation of bystanders in the reconciliation process. The “uninvolved” general public, through witnessing the testimonies of oppressors and oppressed alike, become political actors by recognizing their complicity through acts of commission or omission and recognizing their responsibility and power in preventing future atrocities. (p.75)  One tentative caution Minow gives is that the truth revealed in these processes is necessarily weighted in favor of the victim, thereby still leaving a less than historically accurate record of events. (p.86)  Another lies in the incomplete, but nonetheless positive, therapeutic value of testifying for alleviating both individual and societal maladies resulting from the violence – it is the beginning of the work, not the end. (p.70ff)

Minow argues that the goal of restorative justice is incomplete without reparations for damages done. (p.92)  Reparations, however, are more symbolic than materially meaningful because it is very difficult to quantify the economic value of the effects of mass violence. (p.103)  Reparations, whether monetary, restitution, memorials, apologies or opportunities for future education or development, serve to legitimate and acknowledge the damage suffered by victims, rather than represent any form of equitable recompense. (p.93, 117)

Rather than resting on one method of seeking reconciliation, or claiming to have the one correct answer, Minow posits that trials, commissions and reparations all play a part in mitigating social realities following atrocities. (p.122)  She also adds to this list other possibilities for reconciliation efforts, not as substitutes, but rather to complement the three primary methods discussed. Acknowledging the potential problems associated with some, Minow briefly discusses purging governmental offices in instances of government-sponsored atrocities, blanket amnesty grants, access to secret government files, more concrete use of memorials and art, the production of narrative accounts and building education programs and materials. (Other Possibilities, p.136ff) Within the text, Minow also shows her interest in providing more robust health and psychological services to victims.

COMMENTARY

Not surprisingly, Minow, being a law professor, uses the word justice almost exclusively in the context of law as opposed to the more general concept of the quality of being just or equitable. Her overall investigation of various responses to atrocities seems to pursue the latter definition, favoring integrated methods that might be described as holistic responses to mass violence. The role of legal systems may have less significance, and economic systems more significance, than Minow envisioned, however, in attempts at societal reconciliation.

Contemporaneous with the writing of Minow’s book, and continuing to the present, challenges to the still developing international legal structure have been waged by the United States. In 1998, the Rome Statute of the International Criminal Court (ICC) was adopted in an international effort originally encouraged by the U.S.  Since the Statute did not provide for either of two conditions required by the U.S. for their participation, the U.S. government has repeatedly sought to undermine its effect:[1],[2]

  • The Statute did not provide for the ICC to be subject to the direction and oversight of the U.N. Security Council, of which the U.S. is a veto-wielding member, and
  • The Statute did not provide for the blanket exemption for U.S. military and government personnel, including contractors, from prosecution.

On July 15, 2004, the House of Representatives passed an amendment to the Foreign Operations appropriation bill cutting Economic Support Fund assistance from ICC countries that have not signed a bilateral immunity agreement with the U.S.[3]  The impetus for this action came after Kofi Annan and eight members of the U.N. Security Council, following the revelation of possible Iraqi prisoner abuse, refused to entertain an extension to Resolution 1487, which provided impunity when the U.S. was functioning under the auspices of the U.N.[4]  The ICC considered resolution 1487 illegal in the first place. Additionally, the U.S. Senate considers the ICC to be a treaty that, according to the prevailing interpretation of the U.S. Constitution, remains subordinate to domestic laws and the actions of Congress.[5] 

Incorporation of these subsequent facts do not give rise to any critique of Minow’s work, but does raise questions about the continued efficacy of international law as one of the methods of responding to atrocities. Minow cites three basic problems with international law – retroactivity, politicization and selectivity (see page 2 above).  The stand of the U.S. government on the ICC has significant implications for all international law applications, largely from, but not limited to, the political viewpoint.

The U.S. participates in International Tribunals against other countries, takes corrective military action against others, and imposes the death penalty on citizens of yet others[6], but concedes to the international community or courts no authority over its own citizens. “Justice of the victors” (p.30) becomes justice of the dominant world power.  The U.S. notion of sovereignty requires that “[the U.S. Senate], not the Executive Branch, and not representatives of other nations, were elected to write the laws that bind U.S. citizens, and that only U.S. courts should interpret such laws.”[7]  Does the U.S. extend this notion of sovereignty to other nations? If it does, this abrogates the validity of any international law or legal system over sovereign nations, which, in turn, invalidates the U.S. participation in any International Tribunal, military action or trial of a foreign national – all by the terms of its own domestic law. If it doesn’t recognize other countries as sovereign, then the law of the U.S. becomes the equivalent of international law in the collective minds of the U.S. government.

The basic problem with the ICC for the U.S. government is “this formulation effectively places the United Nations in the role of defining criminal conduct for all persons, including U.S. senior elected officials and military personnel”[8] even though, by McNerney’s own admission, the Rome Statute only “legislates a number of crimes within the four generally recognized international humanitarian law crimes of genocide, crimes against humanity, war crimes, and aggression.”[9]  Therefore, in the international arena, the U.S. seeks to be the arbiter of ethical and humane behavior, without being held liable to the same standard of conduct. Since, so far at least, the international community has found no way to counteract the U.S. roadblock of the ICC, short of signing bilateral immunity agreements as individual states, international law is, at best, impotent and, at worst, a mockery to justice in any sense of the word.

Under the topic of reparations, Minow discussed some economic strategies – monetary payments, scholarships, and the like – that were intended as symbolic recognition of the damage done under oppressive regimes, such as apartheid. Another aspect or symptom of systemic violence, however, is rampant poverty, since economic depravation has historically been a popular tool for the oppression of marginalized populations. Using South Africa as an example, as did Minow, the marginalized population was, in fact, the vast majority.

In 2001, Africans and other people of color comprised 79% of the population, while whites made up 9.6%.[10] The rest of the population included people of mixed race and Indian/Asian people. The population make-up has not changed significantly since 1991. In 2001, seven years after the end of apartheid, the economic demographics still showed staggering levels of poverty within the black population. The official unemployment figure for non-whites was 28% as opposed to 4.1% for whites, but the census counted as unemployed only those who had sought work within the 4 weeks prior to the count.[11] These, the “economically active”, made up only 33% of the non-white population.[12] Considering the age group from 1-18 comprise 27% of the population, the net result is that only 14% of the working age non-white citizens of South Africa were employed, and the vast bulk of those in low income, unskilled labor. While the political hegemony of white South Africans came to end in 1994, they still control the economic structures and the vast majority of the resources within the country.

It would seem wholly understandable that in a country that has experienced so much violence, in the absence of a redistribution of wealth there would simply be a redistribution of violence. Crime in South Africa – murder, assault, and rape, among many others – is at an all time high. “Apartheid criminalized any form of politics, but the liberation struggle politicized crime,” says Graeme Simpson, executive director of the Center for the Study of Violence and Reconciliation.[13] Since the wealth of the participants in apartheid was built on the backs of the black population, it seems only reasonable that “the anti-apartheid movement was as much about the fair and equitable access to economic resources as it was about political power.”[14] It seems only sensible, and just, that economic liberation by some form of equitable redistribution of wealth be added to Minow’s list of responses to mass violence.

 


[1] Bruce Broomhall, “Towards U.S. Acceptance of the International Criminal Court”, Law and Contemporary Problems Vol 64 No 1 (Winter 2001), Duke University School of Law, 142. Provider: OCLC Database: ArticleFirst

[2] Amnesty International, “US Threats to the International Criminal Court”, Campaigns web page, Amnesty International Website, <http://web.amnesty.org/pages/icc-US_threats-eng&gt; , accessed 10/19/2004.

[3] Amnesty International, ibid.

[4] Amnesty International, ibid.

[5] Patricia McNerney, (General Counsel, Senate Select Committee on Intelligence), “The ICC: Issues for Consideration by the U.S. Senate”, Law and Contemporary Problems Vol 64 No 1 (Winter 2001), Duke University School of Law, 183. Provider: OCLC Database: ArticleFirst

[6] Amnesty International USA, “The Death Penalty Violates International Law”, Death Penalty web page, Amnesty International USA Website,  <http://www.amnestyusa.org/abolish/foreign_nationals.html&gt;, accessed 10/17/2004.

[7] McNerney, ibid.

[8] McNerney, ibid.

[9] McNerney, ibid.

[10] The International Marketing Council of South Africa, “Our Land and Our People”, Population Webpage, South Africa – Alive with Possibilities Website, <http://www.safrica.info/ess_info/sa_glance/demographics/population.htm&gt;, accessed 10/20/2004.

[11] The International Marketing Council of South Africa, “Jobs: Building After Apartheid”, Employment Webpage, South Africa – Alive with Possibilities Website, < http://www.southafrica.info/ess_info/sa_glance/demographics/employment.htm&gt;, accessed 10/20/2004.

[12] ibid.

[13] Steven Hunt, “Turning the Tide of Violence in South Africa”, IRDC Reports webpage, The International Development Research Center website, <http://web.idrc.ca/en/ev-45629-201-1-DO_TOPIC.html&gt;, accessed 10/20/2004.

[14] ibid.

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That's too bad - I'm so sorry. Oh, well, just try to make the best of it. What you'll find here is a variety of essays and ramblings to do with things theological, social, whimsical and, sometimes, all three. I don't write to get famous - trust me, I've been told how futile that would be - but to express myself. I love to communicate and browbeat - ummm, I mean dialogue - about the things I find intriguing. Since you're here, and the door's locked, why don't you stay a while. There's a page bar under the header with links to information about us - I mean me. Don't forget to tell me what you think - in a nice way, I mean.

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