Restoration or retribution - South African and German experiences of dealing with the past

Contents

Introduction

Concepts of Justice

The South African Experience – The Truth and Reconciliation Commission

The German Experience – The Nuremberg War Crimes Trials

Restoration or Retribution?

Conclusion

Bibliography

Introduction

The South African and the German way of dealing with the past are discussed in this paper as examples for the two mechanisms, truth commission and trial or military tribunal, to achieve justice for post-conflict societies they represent. Clearly, the two cases are so fundamentally different that a traditional comparison between them could impossibly reveal anything. The aim of this paper is then not to point out obvious differences between indeed incomparable cases, but to examine the importance of the two examples as models for the concepts to achieve justice that they symbolize.

“With a closer look, it becomes clear that truth commissions are of a fundamentally different nature from courtroom trials, and function with different goals in mind.”^[1] The major difference between the two concepts certainly is the form of justice they propose. By looking at the examples of the South African Truth and Reconciliation Commission (TRC) and the Nuremberg War Crimes Trials this paper shall seek to establish if any concept of justice is more appropriate to deal with past atrocities and if either mechanism for justice can be identified as more suitable than the other. The main question to ask is whether every mechanism of dealing with the past is right at the time and in the place it was employed or if a universal concept is feasible?

Numerous societies who are in a transition period between an authoritarian regime and democracy face the question of how to deal with their past. In most cases the option to forget what has happened and to concentrate only on the future is neither possible nor desired by the people. For many the choice is between setting up a truth commission and dealing with the perpetrators of gross human rights violations in special or conventional courts.

Before discussing the South African and the German examples, part one of this paper examines the different concepts of justice proposed by the two mechanisms of dealing with the past. The examination of those concepts of justice will be preceded by the more general debate why it is important for states and societies to deal with their pasts at all. Here, the negative impact of national amnesia about past atrocities will be considered.

Part two then focuses on the South African experience to deal with the atrocities of the apartheid regime by means of the Truth and Reconciliation Commission. The commissions approach on how to deal with the past will be discussed alongside both its achievements and shortcomings. The controversial debate about the TRC’s policy to grant amnesty for perpetrators of gross human rights violations in return for the truth shall be a central feature of this part.

The German experience and the International Military Tribunal (IMT) at Nuremberg are the topic of part three. One of the most important achievements of the IMT certainly was its impact on international law. For the first time in history, although this was not the primary aim of the tribunal, ‘crimes against humanity’ were part of the allegations against the defendants. On the other hand, the IMT was criticized heavily for constituting victors’ justice and therefore its judgement was argued to be illegitimately imposed.

Finally, part four compares the two mechanisms, truth commissions and trials or military tribunals, and seeks to point out their advantages and disadvantages. Clearly, it must be argued that the more traditional approach to achieve justice by punishment pursuit by trials or military tribunals satisfies victims’ desire for retribution better than truth commission could ever do. Nevertheless, truth commissions can be employed in circumstances where trials are impossible as well as they are the only mechanism to break the circle of revenge by promoting forgiveness and reconciliation. However, the problem remains that “reconciliation might be a desired end point but above all it is a process.”^[2] One can thus hardly evaluate the success of a truth commission as the process it possibly initiated takes several generations to show its results.

The aim of this paper is to discuss the advantages and disadvantages of both truth commissions and trials or military tribunals as a means to deal with the past. Furthermore, this paper seeks to evaluate the suitability of both mechanisms for establishing a lasting peace and a stable government.

Before engaging in this debate it seems appropriate to discuss the different concepts of justice the two mechanisms propose and establish the benefits and shortcoming of these concepts to promote reconciliation within a nation.

Concepts of Justice

Is it possible that the antonym of ‘forgetting’ is not ‘remembering’, but justice ?^[3]

The spirit of revenge: my friends, that up to now, has been mankind’s chief concern; and where there was suffering, there was always supposed to be punishment.^[4]

Before discussing examples of different models of dealing with the past, it is worthwhile to look at the various types of justice they propose. Essentially, there are two different types of justice to be considered: retributive justice and restorative justice. War crimes tribunals, such as the International Military Tribunal at Nuremberg, tend to be retributive justice, while truth commissions, such as the Truth and Reconciliation Commission in South Africa, are more likely to follow the concept of restorative justice.

The notion of retributive justice is widely known and accepted, since domestic courts apply this concept of justice every time a criminal is punished.

Retributive justice derives from the understanding that wrongdoing deserves punishment and it is this punishment of the offender that gives the victim satisfaction. However, the fundamental principle of retributive justice is that the gravity of the punishment must be strictly proportional to the gravity of the crime. To apply this concept of justice to deal with gross human rights violations, thus seems hardly appropriate, as the gravity of those crimes by far exceeds the most severe punishment available.

The alternative to retributive justice is the concept of restorative justice, which does not focus on the punishment of the offender but on forgiveness, reconciliation and compensation. Yet, the difficulty with this form of justice is that many people do not recognize it as justice at all.

Conventionally, the institution of justice depends upon fair trial and appropriate punishment where guilt is proven. Otherwise, aggrieved victims of discrimination and wrongdoing feel no sense of reparation. Their suffering in conflict is unresolved. Can they ever become reconciled living in ‘a culture of immunity’?^[5]

Since restorative justice is not a from of justice we experience on a day-to-day basis in domestic law and the offender usually goes without punishment in the traditional sense, victims sometimes perceive this type of justice as inadequate.

Before looking at the two concepts of justice in more detail, this chapter will firstly explore why justice is so important for societies in transition in dealing with past atrocities.

Societies, which have overcome human rights abusing regimes and are now in transition, face the question of how to resolve their past. Effectively, societies have to chose between forgetting what happened and dealing with the past in one way or the other.

Those who advocate collective amnesia usually argue that whatever mechanism one chooses for dealing with the past, it will do more harm than good. Victims would have to remember once again what happened to their loved ones, although on a personal level they might already have successfully got to terms with the injustice they experienced. In this argument one is tempted to believe that “opening the old wounds […] harms rather than helps beneficially to reconstruct a society in transition.”^[6]

Furthermore, the offenders are normally not a few individuals but huge parts of the former government and social elite. Punishment for large parts of the society, so the argument, would both weaken the society’s ability to reconstruct itself and constitute an unbearable burden for the society.^[7] Forgetting what happened could then ease the problem of reconstructing state and society. Nevertheless, it is important to note that collective amnesia does not constitute any form of justice and is widely seen as less beneficial than even the least successful attempt to deal with the past.

Moreover, forgetting what happened usually means that the same people who committed the most horrendous crimes stay in office and decide the future of the society. Transition to democracy and the rule of law might be seriously hindered.

Just as remembering the past will reveal the politics of the different understandings of the rule of law, so a policy of forgetting the past (however noble its intentions) will obscure such politics, perhaps permitting the bad old politics to exercise a hold on the future.^[8]

Most societies who had to come to terms with their past did thus not chose to forget about what happened and focus only on the future, but instead chose the often painful way of disclosing the truth about past atrocities. In South Africa, the determination to reveal the truth about the apartheid regime was widespread. “There is perhaps universal agreement that the truth about abuses of the past must be known.”^[9]

This determination to reveal the truth about the past derives from the hope that knowing what happened can help to prevent future atrocities.

If societies are to prevent recurrences of past atrocities and to cleanse themselves of the corrosive enduring effects of massive injuries to individuals and whole groups, societies must understand – at the deepest possible levels – what occurred and why. In order to come fully to terms with their brutal pasts, they must uncover, in precise detail, who did what to whom, and why, and under whose orders.^[10]

It is not enough that a small elite, i.e. the new government, holds the knowledge of the past. In order to prevent past atrocities from recurring, it is essential to make known the truth about the past to the society at large.

Furthermore, the victims of gross human rights violations will certainly not forget what happened, especially not when the society chooses to ignore the past. And where the victims experience no reparation for their suffering, and where society does not even acknowledge their suffering, they will most likely seek retaliation against the offenders. It is important that this shall be prevented, because:

In order not to remain trapped in the confines of past injuries and injustices, individuals must learn to forsake their search for vengeance. Without this there can be no new beginning, no transformation of relationships. As Hannah Ahrendt phrased it […] ‘forgiving serves to undo the deeds of the past, whose ‘sins’ hang like Damocles’ sword over every new generation.’^[11]

In order to start the process of reconciliation, it is essential for societies to resolve their past without forgetting it, as the danger with collective amnesia clearly is that the past will be like a dark cloud hovering over the society, preventing forgiveness and reconciliation.

For the victims acknowledgement of their suffering is paramount. Civilised societies have a duty to restore the victims’ dignity by at least recognizing what happened to them.

There are two crucial reasons for confronting the past. Firstly, as a civilised society we must recognise the worth and dignity of those victimised by abuses of the past. If we fail to confront what happened to them, in a sense we argue that those people do not matter, that only the future is of importance. We also perpetuate, even compound, their victimisation.
The second reason has to do with establishing and upholding the rule of law. It is important to send a message to the effect that everyone is subject to the law. The rank and office of those who victimised others must not be allowed to immunise or insulate them from society’s efforts to confront the past.^[12]

The legal argument why societies need to deal with their past clearly is that in order to rebuilt the society on the basis of the rule of law, it is essential to apply the rule of law to the past. When a society seeks to uphold the rule of law on the basis of unresolved injustices, this endeavour is almost prone to fail.

Nevertheless, it could be argued that to sentence people for something which was not a crime at the time the offences were committed, cannot be right. Although certainly legitimate from a moral point of view, it might not be justified in legal terms.

Societies can deal with the past in numerous ways, but the predominant mechanisms are certainly war crimes tribunals and truth commissions. Clearly, these mechanisms are applied very differently from case to case, but it is important to note how war crimes tribunals and truth commissions are based on two different concepts of justice and that this remains so wherever these mechanisms are applied.

War crimes tribunals usually follow the road of retributive justice approved and tested by domestic law. The concept of retributive justice focuses on the punishment of the offender, while the victim largely remains peripheral in the process. Murphy has illustrated the underlying philosophy of retributive justice and drawing on Kant’s theory of retributive justice, he argues: “Retributive theories of punishment maintain that criminal guilt merits or deserves punishment […].”^[13] Murphy argues further that “the non-criminal members of the community have a moral duty to inflict (through official authorities, of course) the punishment.”^[14]

Furthermore, punishment is also morally and philosophically legitimate because in a legal system, everyone bears the burden of obeying the rules. Those who disobey gain an unfair advantage and punishment is society’s attempt to establish that no profit can be gained from wrongdoing. Originally, it was the principle of jus talionis (return like for like) that determined the punishment in retributive justice, but this has been developed to the idea that just punishment is proportional to the crime committed, which means that the punishment must reflect the gravity of the crime, i.e. “the punishment for murder will be of a gravity justly proportional to the gravity of murder.”^[15] Logically, in domestic law, the punishment for murder will be the most severe punishment available.

Yet, when applied to ‘crimes against humanity’ this principle does no longer fit, as the gravity of these crimes exceeds the most severe punishment available. Any punishment can thus hardly be seen as ‘proportional’ to the atrocity of the crime.

Watching the unfolding spectacle at Nuremberg, political theorist Hannah Arendt wrote, ‘For these crimes, no punishment is severe enough. It may well be essential to hang Göring, but it is totally inadequate. That is, this guilt, in contrast to all criminal guilt, oversteps and shatters any and all legal systems.’^[16]

Additionally, retributive justice relies on the idea that “the criminal owes a debt to the law-abiding members of his community; and, once the debt has been paid, he may re-enter the community of good citizens on equal status.”^[17] Victims of gross human rights violations would rarely want to see their tormentors ‘re-enter the community’ at all and certainly not ‘on equal status’.

Truth commissions on the other hand seek to initiate a process of reconciliation by means of restorative justice. This type of justice focuses on the victim rather than the offender and instead of punishment for the sake of the wider public benefit^[18] it proposes forgiveness and compensation.

Rather than dealing with crimes in the courtroom and via lawyers and judges, in restorative justice the offender is confronted by its victim, who explains what harm the crime has caused both physically and psychologically. Ideally, the two parties agree on a settlement and the offender has the chance to apologise. “The aims of restorative justice meetings […] are primarily to hold the offenders accountable for their offending in meaningful ways and to make amends to victims in a symbolic sense and, where possible, in a real sense too.”^[19] Obviously, this process is much more personal and direct, as the parties involved are more in control of the proceedings than in a court case where the process is determined only by the lawyers and the judges.

Unlike in retributive justice, “one of the hopes of restorative justice is that reconciliation between the offender and the victim will occur.”^[20] Where retributive justice seeks to punish a guilty offender for the benefit of an abstract idea of justice, restorative justice facilitates a process of forgiveness and reconciliation.

However, since our day-to-day experience of the rule of law is shaped by the idea that the punishment of an offender is in a way legally prescribed vengeance, it is hard to believe that restorative justice could satisfy victims’ desire for retribution. This is particularly true for truth commissions dealing with gross human rights abuses and in South Africa

TRC commissioners are aware that many who suffered during long years of apartheid want their oppressors punished. This involves trial and verdict. For these victims, justice encompasses restitution and retribution. […] Mere disclosure (even if absolutely full and without reservation) coupled with apology is not enough.^[21]

And really, to imagine that gross human rights violations committed during the era of apartheid could be forgiven only because the offender makes full disclosure of all facts and apologises must appear bizarre on first look. Complaints about the type of justice the Truth and Reconciliation Commission in South Africa proposed were thus numerous:

’It stinks to high heaven,’ said a prominent black editor of the amnesty process. ‘To imagine after confessing, these people who committed the most horrendous crimes will then be patted on the shoulder by the TRC,’ he complained. Indeed, the editor went on, ‘The TRC is a denial of justice. Without justice, how can the victims feel healed?’^[22]

Clearly, the biggest challenge for restorative justice is to justify the idea that knowing the truth is worth more than seeking punishment, indeed that the truth often remains hidden if punishment is threatened. People naturally have difficulties understanding that in truth commissions “retribution, that essential element of justice, is sacrificed for the sake of ‘truth’ and peace.”^[23]

Yet, can ‘real’ justice only be achieved by retribution? Is not restorative justice an equally valid concept of justice? The common assumption seems to be that justice can only be achieved by punishment. “As South Africa’s Truth and Reconciliation Commission (TRC) began its public hearings, the newspaper The Sowetan warned, ‘Reconciliation that is not based on justice can never work.’”^[24]

It can be concluded that “in choosing to remember, in recognizing that it is impossible to forget […], a country will be in a stronger position to build a more stable future, less likely to be threatened with tensions and conflict emerging from the shadows of a mysterious past.”^[25] It appears that societies can gain more from dealing with past experiences than from applying general amnesia.

However, the two different models of justice discussed here that can be chosen to get to terms with the past are also both insufficient for dealing with ‘crimes against humanity’. By looking at two examples in the following chapters it shall be established if they are both equally insufficient.

Although there seems to be general agreement that the rule of law is a desirable thing, traditional notions of what constitutes justice predominate.

Most of these days are reared to know the majesty of the law. It was law, at Nuremberg, that delivered Germany from Nazism. And it was the loss of law, so vividly portrayed by Franz Kafka and others, that has been at the heart of 20th century totalitarianism of all sorts.^[26]

The rule of law appears to be still commonly associated with retributive justice and punishment rather than with forgiveness and reconciliation.

[...]

^[1] Priscilla B. Hayner: Unspeakable Truths: confronting state terror and atrocity, Routledge, London, 2001, p.7

^[2] Andrew Rigby: Justice and Reconciliation After the Violence, Lynne Rienner, London, 2001, p.139

^[3] Yosef Hayim Yerushalmi, as cited in: Lawrence Douglas: The Memory of Judgement: Making Law and History in the Trials of the Holocaust, Yale University Press, New Haven, 2001, p.vii

^[4] Nietzsche, as cited in: Richard A. Wilson: The Politics of Truth and Reconciliation in South Africa: Legitimizing the Post-Apartheid State, Cambridge University Press, Cambridge, 2001, p.156

^[5] David J. Whittaker: Conflict and Reconciliation in the Contemporary World, Routledge, London, 1999, p.116

^[6] Robert I. Rotberg: “Truth Commissions and the Provision of Truth, Justice, and Reconciliation”, in: Robert I. Rotberg and Dennis Thompson (ed.): Truth vs. Justice: The Morality of Truth Commissions, Princeton University Press, Oxford, 2000, p.7

^[7] The burden for the society would be twofold: firstly there is the financial burden of conducting trials and if necessary building new prisons, secondly society has to compensate for the loss of sometimes a whole generation.

^[8] David Dyzenhaus: Truth and Reconciliation and the Apartheid Legal Order, Juta & Co. Ltd, Cape Town, 1998, p.23

^[9] Aryeh Neier; Joce Zalaquett and Adam Michnik: “Why deal with the past?”, in: Alex Boraine; Jenet Levy and Ronel Scheffer (ed.): Dealing with the Past: Truth and Reconciliation in South Africa, Institute of Democracy in South Africa, Cape Town, 1994, p.5

^[10] Rotberg, in: Rotberg and Thompson (ed.), op.cit., p.3

^[11] Andrew Rigby: Justice and Reconciliation After the Violence, Lynne Rienner, London, 2001, p.12

^[12] Neier, Zalaquett and Michnik, in: Boraine (et al.), op.cit., p.3

^[13] Jeffrie G. Murphy: Retribution, Justice, and Therapy: Essays in the Philosophy of Law, Reidel Publishing Company, Holland, 1979, p.77

^[14] ibid., p.82

^[15] ibid., p.227

^[16] Gary Jonathan Bass: Stay the Hand of Vengeance: The Politics of War Crime Tribunals, Princeton University Press, Oxford, 2000, p.13

^[17] ibid., p.84

^[18] Allison Morris and Warren Young: “Reforming Criminal Justice: The Potential of Restorative Justice”, in: Heather Strang and John Braithwaite (ed.): Restorative Justice: Philosophy to practice, Ashgate, Aldershot, 2000, p.15

^[19] ibid., p.16

^[20] ibid., p.16

^[21] Whittaker, op.cit., p.32

^[22] Rotberg, in: Rotberg and Thompson, op.cit., p.14

^[23] Whittaker, op.cit., p.32

^[24] Amy Gutmann and Dennis Thompson: “The Moral Foundations of Truth Commissions”, in: Rotberg and Thompson, op.cit., p.22

^[25] Priscilla B. Hayner: Unspeakable Truths: confronting state terror and atrocity, Routledge, London, 2001, p.254

^[26] Kader Asmal, in: Dyzenhaus, op.cit., p.vii